The recently issued decision of the Court of Appeal of Ontario (ONCA) in McGrath v. Joy, confirmed that a suicide note could be a valid will.
In the decision, the ONCA reviewed the decision of the Superior Court of Justice, which had held that even though the suicide note met the technical requirements for a holograph will, the testator did not have the requisite capacity to make the will as he was under the influence of drugs and alcohol. The ONCA overturned the lower court’s decision after a thorough review of the common law requirements for a finding of testamentary capacity.
Suicide note expresses wishes
The day Mr. Joseph Joy committed suicide, he wrote a suicide note that expressed his testamentary wishes and met the technical requirements for a holographic will. The day before his suicide, Mr. Joy had consumed drugs and alcohol and called people sounding drunk on the phone.
In his suicide note, Mr. Joy renounced his previous will, outlined how he wanted his possessions distributed, and even made a note about his wishes for his cremation and ashes. As the note was written entirely by hand and signed, all the parties and the lower court Justice agreed that it met the requirements of a holograph will.
Holograph will requirements
A Holograph Will is a will that is written entirely by hand and then signed by an individual. In the context of wills, the individual writing a will is referred to as a testator. In order to be considered valid, the entire will must be written entirely by the testator. It is important to recognize that one can not type up a will, print it out, and then sign it. For a typed will to be valid, it needs to be signed in front of two witnesses. The benefit of a holograph will is that it does not require witnesses and can be used in an emergency.
The Succession Law Reform Act outlines the requirements for a Holograph will. Paragraph 6 of the SLRA sets out the following rule:
“A testator may make a valid will wholly by his or her own handwriting and signature, without formality, and without the presence, attestation or signature of a witness.”
Rule 75 of the Ontario Rules of Civil Procedure sets out the process for Contentious Proceedings, which was properly followed.
Was the will written while intoxicated?
Despite the details in the suicide note, the lower court held that Mr. Joy did not have testamentary capacity when he wrote the will because he was consumed alcohol, smoked hash cigarettes, and was described as sounding drunk by witnesses the day before his suicide. The trial judge also took into account that Mr. Joy wrote his note in a sloppy handwritten and that he includes a “profanity-laced diatribe” against his estranged spouse, Joanne.
Though the ONCA ultimately found that the trial judge erred in his application of the law to the facts, the appeal court confirmed that the trial judge had referenced the correct common law requirements for a finding of testamentary capacity. The ONCA applied the same requirements and found that Mr. Joy was a chronic drug and alcohol user and that his use the day prior to his suicide did not impact his testamentary capacity; further, the ONCA found that he was a generally sloppy writer, as evidenced by other samples of his writing and that the trial judge erred in relying on these two factors to make their ruling.
What is testamentary capacity?
Testamentary capacity is defined as “the capacity in executing a will to understand the nature and extent of one’s property and how one is disposing of it and to recognize the natural objects of one’s bounty”.
The Supreme Court of Canada issued the seminal Canadian decision on testamentary capacity in 1902 in its decision in Skinner v. Farquharson (1902), 32 S.C.R. 58, in reliance on Banks v. Goodfellow, and have been applied ever since.
A more recent decision of the ONCA in Hall v. Bennett Estate confirmed that a testator must have a “sound disposing of mind” and that in order to have a sound disposing of mindset a testator must meet the following requirements:
- The testator must understand the nature and effect of a will;
- The testator must recollect the nature and extent of his or her property;
- The testator must understand the extent of what he or she is giving under the will;
- The testator must remember the persons that he or she might be expected to benefit under his or her will; and
- The testator where applicable, must understand the nature of the claims that may be made by persons he or she is excluding from the will.
Testamentary capacity and drug and alcohol use
In the Joy decision, the ONCA confirmed that it is an “error to infer a lack of testamentary capacity based on a person’s use of alcohol and drugs” and that rather, a court should consider whether a testator “suffers from a disorder or condition that may impact on his or her testamentary capacity”. What that means is that courts should not start “from the premise that a pattern of very heavy drinking, on a daily basis, suggest[s] testamentary incapacity” but rather consider evidence of the effect that drug and alcohol had on a testator’s testamentary capacity vis-a-vis the above five requirements.
Overall, while holographic wills are widely accepted and sometimes, an easier choice for a testator, it is important to keep in mind that holographic will are possibly more prone to litigation due to the lack of witnesses and other complicating factors.
Contact Toronto Estate Lawyers at Derfel Estate Law for Will Challenges
At Derfel Estate Law, our experienced team of estate lawyers are always up to date on will challenges, estate administration requirements and can assist in acting as an Estate Trustee. Contact us by phone at 416-847-3580 or reach us online to discuss your estate litigation needs.