Personal Law

A judge in Canada has determined that a will written on a napkin at McDonald’s was valid. This unusual story highlights the importance of taking early action and professional advice when putting your will in place.

McDonald’s and the Napkin

Philip Langan listed the names of his children with instructions to distribute his estate equally among them on a brown napkin at McDonald’s.

Mr Langan was apparently under the impression that he was having a heart attack and took swift action to ensure that he had some form of will in place. Thankfully, Mr Langan did not have a heart attack at McDonald’s, but he continued to treat his napkin-based will as his testamentary document.

Unfortunately, after Mr Langan’s death in 2015, one of his daughters contested the will.

Just over four years later, Justice Layh determined that the will was valid. However, Justice Layh noted that in circumstances such as this, there can often be doubt as to whether or not there is sufficient intention to actually make a will. Nevertheless, as Mr Langan had thought he was suffering from a heart attack, this showed testamentary intention. On that basis, and on the basis of the evidence from the deceased’s other children, Justice Layh determined that the will was valid.

Key Takeaways

The case of Mr Langan and the napkin will is particularly interesting.

Although the intention with DIY wills is generally to avoid costs, more often than not these wills result in disputes, delays and substantial expense.

We have previously blogged about the dangers of making informal wills and the same points apply here.

The key three ingredients of:-

(1) having legal capacity to make a will;

(2) having the intention to make a will; and

(3) signing the will correctly before a witness – all still apply.

Making a napkin-based will in Scotland would likely result in additional expense and significant delays with the estate administration after death. In cases like this, there is always a risk that it could be argued that the purported will was merely a note of an intention to make a will at some point in the future and, therefore, not actually a valid will.

Additionally, in the event that such a will was successfully challenged in Scotland, the will would be set aside and the deceased would be deemed to have died without a will at all. Therefore, any desired succession plans would be completely frustrated.

In Mr Langan’s case, the fact that Justice Layh’s judgment was made more than four years after the death highlights the potential for substantial delays.

Conclusion

Our advice is always to discuss putting a will in place with your solicitor. This will avoid unintended consequences such as lengthy delays, expense and disputes. Moreover, professional advice at an early stage will ensure that your desired succession planning goals can be achieved.

For advice on wills and succession planning, please do not hesitate to contact any of the members of our Personal team.

Fraser Mackay
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