Having a valid will is perhaps the first step in creating an estate plan that will ensure your assets are distributed as you wish in the event of your death. They also allow people to take steps to provide for their loved ones. Typically, a will should be drafted along with an individual’s lawyer, and be witnessed upon signing. However, there are situations where someone might write a will on a piece of paper and sign it without a witness. This is known as a holographic will. However, the situation around a holographic will can play a role in determining whether it will be seen as valid in the eyes of the court. In a recent decision from the Ontario Superior Court of Justice, the court was tasked with determining if a suicide note could stand as a holographic will.
We should warn readers that the following blog contains mentions of suicide.
The situation brought before the court was tragic. The deceased took his own life in July 2019. He left behind a a step-son (“MM”), who was the applicant in the matter. At the time of his death, the deceased was married to “JJ”.
The deceased signed a will in 2016, making provisions for both children, his wife, and his longtime friend, “DR.” The will gifted the deceased’s interest in his electrical companies to DR, while JJ was to receive a $600,000 life insurance policy owned by his company.
The suicide note left by the deceased instructed that anything in his will that provided anything to JJ was to be considered “void.” It made no mention of DR. Both JJ and DR sought to have the court not admit the note into probate, and instead see the directions of the 2016 will followed.
A number of witnesses testified about the deceased’s use of drugs and alcohol. Friend and family told the court that he was a heavy drinker and user of hash. There was a Facetime call on the day before his death, where the deceased and JJ were talking to a friend. JJ told the court that something was said during the call that made the deceased leave in anger, slamming a door behind him. He was found dead early the next morning.
The court described the note as a “profanity laced diatribe aimed at (the deceased’s) spouse.” The evidence before the court suggested that the deceased was intoxicated the evening before he took his life, but a doctor could not state that he was intoxicated at the moment he did so.
Ontario’s Succession Law Reform Act states that,
“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.”
The court noted that questions of capacity cannot be an issue if a holographic will is to be admitted. Additionally, the court stated that a suicide note is a special circumstance that requires close scrutiny, adding that the burden of proving testamentary capacity falls on the applicant, MM.
In this case, the court considered evidence from a number of people that indicated the deceased was intoxicated prior to going to bed the day before his death, and that he was depressed. In addition, the note was described as “sloppy” and “illegible.”
As a result, the court denied the applicant’s request to have the suicide note admitted as a holographic will.
Contact NULaw in Toronto to obtain proactive legal advice and plan your intergenerational wealth retention strategy. We provide unparalleled personal guidance for all your estate planning needs. Understand your options, minimize your legal and financial risks, and protect your loved ones. Contact us online or at 416-481-5604 to book a consultation today with estate planning lawyer Lex Arbesman.