In a recent Saskatchewan decision, a court accepted as valid a will  that had been written by a father on a fast-food restaurant’s napkin years before his death.

What Happened?

The father of eight children and a widower in Saskatchewan passed away on December 30, 2015.

Shortly after his death, two of his children produced a document they said was the father’s will. They said that the deceased had written his will on what was a very thin, brown-coloured, paper restaurant napkin. One of the children stated that the deceased had created the document while at a fast-food restaurant when he thought he was having a heart attack.

On the napkin, the deceased had written in pen the names of his seven children (one son had already passed away, another son died in the interim) and at the end of the list he wrote “Split my property evenly”. The deceased had signed at the bottom of the napkin.

While all of the deceased’s children agreed that the deceased’s estate should be divided among them, some of his children originally doubted whether he had written the will on the napkin or whether he had intended it to be used as a will.

Issue

The issue was whether the handwritten, undated document created by the deceased met the requirements of s. 37 of The Wills Act, 1996 (the “Act”) to permit it to be accepted as a valid holograph will.

The court noted, however, that its decision would largely be academic because even if it determined that the will was not valid, the children would be entitled to their father’s one-eighth share of the estate since under The Intestate Succession Act, 2019 all of the deceased’s children would inherit equally.

The Law

Section 2 of the Act sets out the requirements of a valid holograph will as follows:

2 In this Act, “will” includes:

(a) a testament;

(b) a codicil;

(c) an appointment by will or by writing in the nature of a will in exercise of a power; and

(d) any other testamentary disposition. («testament»)

In Saskatchewan, holograph wills and wills commonly called  “formal” wills are both recognized as valid wills. Section 8 of the Act allows for holograph wills; it states:

8 A holograph will, wholly in the handwriting of the testator and signed by him or her, may be made without any further formality or any requirement as to the presence of or attestation or signature by a witness. 

Decision

After reviewing all the children’s testimonies and evidence, the court found sufficient evidence to establish circumstances for a finding that the deceased had the requisite testamentary intention to create a will. Without speculation, the court was satisfied that the document expressed the deceased’s final wishes. The court stated:

“Exemplary of the court’s satisfaction that s. 37 of the Act saves the document as a valid will is the explanation that [the deceased] thought he was having a heart attack – a time when one’s mind would reasonably turn to the question of estate planning, especially in the absence of an existing will. [The deceased]’s immediate delivery of the will to his daughter […], and the comment he made to her […] that she keep the document in case something happened to him, shows a clear testamentary intention.”

As a result, the court concluded that the document was a valid will and could be admitted for probate.

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The knowledgeable estate lawyers at Cherkowski Marsden LLP have over 50 years of combined experience helping people in Vernon create Wills designed to protect their families’ futures. Everyone, no matter their stage in life or income bracket, should have a Will to retain control over the administration of their estate. We work with clients with both modest and robust estate planning needs, advising on matters including asset distribution, business considerations, foreign assets and trust considerations. For clients with business assets and those in need of assistance with succession planning, we also offer the benefit of our considerable business law experience. It is impossible to predict all of life’s variables but having an estate plan in place takes a great deal of stress out of the unknown.

Contact the knowledgeable estate planning lawyers at Cherkowski Marsden LLP in Vernon and Salmon Arm for trusted legal advice and guidance on your estate planning needs, including how best to maximize clarity and minimize financial implications for your estate trustees and heirs. We look forward to collaborating with you to achieve your goals with respect to your interests and the protection of your loved ones. We can be reached online or by phone at 250-308-0338 (Vernon office) or 250-803-9171 (Salmon Arm office).