This article offers an overview of an interesting recent Saskatchewan estate litigation decision, in Gust v Langan, 2020 SKQB 42.
A handwritten document had been written on a McDonald’s napkin. The issue for the court was whether the napkin could be legally accepted as a valid holograph will. A holograph will is a will that is entirely written, dated, and signed in the handwriting of the testator (i.e the person making the will).
Facts:
Some time before he died, one Philip Langan had written in pen on a very thin, brown-coloured, paper restaurant napkin. The text he wrote read as follows:
Ron Langan
Dennis Langan
Sharon Langan
Landry Langan
Philip W. Langan
Maryann Langan (Gust)
Dallas Langan
Split my property evenly,
“Dad Philip Langan”
Did this napkin meet the requirements of a valid will? This particular holograph document was drawn informally. As such, the issue before the court was whether Mr. Langan intended to create a will when he wrote on this napkin in the restaurant.
The challenger to the probate, Maryann, was skeptical that the napkin was written by her father. However, she offered no handwriting samples to disprove it was his writing. Maryann also stated that her father told her in November 2015 that he would not leave a will because “he wanted us kids to fight like he had to.”
Other evidence, however, told a different story. Apparently, Mr. Langan had created the document while at McDonald’s when he thought he was having a heart attack.
Sharon Langan and her brother, Ronald Langan, stated that they had never heard their father say that he had chosen not to create a will so that the children would have to fight over the estate. Indeed, Sharon stated that her father would often mention, “Sharon has my will, that napkin.”
Sharon stated that she was not present at the McDonald’s restaurant when her father “started writing on the napkin,” but she observed him signing his name after, when he gave the document to her and said, “This is my will[.] I want you to keep this in case something happens.” Sharon stated that the document was in her possession until she gave it to her brother to deliver to a lawyer, Mr. Stephaniuk.
Finally, another son, Philip, stated that he was at the McDonald’s restaurant, not when his father created the document, but when his father “gave…the handwritten document to…Sharon Langan.” Philip states that his father told Sharon, “This is my will and I want you to keep this in case something happens to me.”
Conclusion:
Ultimately, the court found sufficient evidence to show that Mr. Langan had the requisite testamentary intention to create a will, and that the document showed Mr. Langan’s final wishes.
This napkin will episode is but the latest in the line of various Saskatchewan holographic wills. In 1948, farmer Cecil Harris scratched a note on the fender of a tractor as he lay dying, being pinned underneath. Cecil wrote, “In case I die in this mess I leave all to the wife. Cecil Geo Harris.” This fender was probated, and found to be a valid will. The fender may now be seen at the University of Saskatchewan College of Law.
It remains to be seen what will be the next holographic device to test the limits of what is a will. One thing is clear: as interesting as some holographic cases can be, obtaining a professional lawyer-drawn will remains the safest and generally cheapest way to ensure your final wishes are followed.
James Steele is a lawyer with Robertson Stromberg LLP in Saskatoon, Saskatchewan (j.steele@rslaw.com). He practises extensively in the area of estate litigation in Saskatchewan. He can be reached at j.steele@rslaw.com or 1 306 933 1338. The readers are advised to consult a lawyer for specific advice.
There does not seem to be any point to this challenge.
ReplyDeleteI assume Mr. Langan had no legal spouse and there were no offspring in addition to those named on the napkin, and that none of those named were minors or were disabled and therefore none relied on Mr. Langan for financial support. As such, each of those named would be entitled to an equal share of the estate if Mr. Langan died intestate.
Assuming 'property' means the entire estate, whether the napkin is a legal will appears to be immaterial as the specified distribution of the estate will be identical to an intestacy. As indicated, the napkin only specified the distribution and beneficiaries while providing no other details to take exception to.
Maryann argued the estate should be treated as an intestacy, but the result appears to be identical either way, which should have been apparent before proceeding with the challenge. There was nothing to be gained with the challenge.
Your article does not state if legal costs were awarded against only Maryann as perhaps they should be.
Unfortunately, further court involvement seems necessary as Mr. Langan apparently did not appoint anyone as estate Executor.
Totally agree with you on this. I read the case, and there was a son who predeceased his father, leaving children. But the court noted that everyone had agreed to include the deceased's son's children anyway.
DeleteEven the court agreed that the issue was "largely academic". I suppose its value is that of adding to the body of law that defines what makes a valid holograph will. However "test" litigation is not something that is of benefit to most clients, IMO, when the outcome is going to give the same result whether one wins or loses.
Costs were interesting on this one, too. They were borne by the estate! Apparently the parties weren't clear on their positions regarding costs (in other words, nobody raised it) but when an earlier order was obtained, all parties had agreed that costs would come out of the estate, so the judge did the same here, pending anyone bringing it up.
Lynne
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ReplyDelete
ReplyDelete@ Mark. Excellent response. The question that lingers is ....why challenge the Napkin Will? What would Maryann Langan (Gust) have to gain? 'Maryann, was skeptical that the napkin was written by her father. However, she offered no handwriting samples to disprove it was his writing.'
Surely, Mr. Stephaniuk the lawyer involved would have made her aware of this.
Webeye
Lynne, your comments regarding costs hint that you may have other thoughts on how that matter should have been handled.
ReplyDeleteI'll open the door for further input.
As there was a prior order, it seems likely an Administrator had been appointed prior to Maryann challenging the napkin will.
Although the Administrator would be required to take a neutral position until the court ruled on the matter, what if any liability would the Administrator be exposed to in not asking the Judge to assign costs to only Maryann since she lost the case?
Other beneficiaries could conceivably later oppose signing an Administrator Release on the basis that all beneficiaries should not be required to bear the costs resulting from the actions of one beneficiary, further claiming the Administrator should have taken action to ensure that didn't occur.
The Judge may not necessarily support the Administrator's request, but it would become a matter of record the Administrator made the request in the interest and protection of the estate. Even if the ruling does not support the request, the Judge's order would remove liability from the Administrator.
@ Webeye, while we may anticipate Maryann's lawyer advised her of the merits of her position and likelihood of success in court, ultimately, it is the client who will decide if the matter will proceed to court or not, even if that decision may be opposite to the lawyer's advice.
PS: Don't call me Surely ;-)
As I have pointed out in other posts, it is often difficult to comment as we often do not get the complete story. There is always more to the story it seems.
ReplyDelete{There does not seem to be any point to this challenge.
I assume Mr. Langan had no legal spouse and there were no offspring in addition to those named on the napkin, and that none of those named were minors or were disabled and therefore none relied on Mr. Langan for financial support. As such, each of those named would be entitled to an equal share of the estate if Mr. Langan died intestate.} [Mark]
The above sounds reasonable but what is her motivation? She challenges the validity of the signed napkin will. 'Maryann, was skeptical that the napkin was written by her father. However, she offered no handwriting samples to disprove it was his writing'. Why not get a hand writing expert to offer an opinion? What did Maryann expect to get from all of this. Was she just a disgruntled **** disturber or is there more to this story? It would be interesting to know more about the related 'costs'
PS: @ Mark, what is your background?
Webeye