Under Ontario law, it is possible to have a holograph will. This is a will made without formality or a witness, just written and signed by the testator. But like other wills, the testator must have testamentary capacity to make the will – they need to understand what they were doing when making it.

In the recent case of McGrath v Joy, the Court of Appeal for Ontario examined the validity of a holograph will in the form of a suicide note. The note was found on the deceased and prepared in “suspicious circumstances”. The deceased’s testamentary capacity was called into question.

The deceased wrote a suicide note

In 2019, a 49-year-old man died by suicide. He had been drinking alcohol and smoking hash oil cigarettes the day before he died. There was no toxicology report or clinical evidence of incapacity.

The police discovered a two-page suicide note in which the deceased said that his wife had “drove me to this” and asked his business partner, who was also his executor in a previous will, to make sure that she didn’t get anything. The note said that his previous will was void and that everything goes to his stepson and grandson.

The stepson and grandson brought an application to have the note declared his valid will. This was opposed by the deceased’s wife and his business partner’s son who was also named as a beneficiary in the previous will.

The suicide note constitutes a holograph will

Under section 6 of the Succession Law Reform Act 1990, a holograph will is defined as follows:

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.

Given that the note was written in the deceased’s handwriting and he signed it, the parties agreed that it met the requirements for a valid will under section 6. The issue in dispute was whether the deceased had testamentary capacity to make a will when he wrote the note. The parties further agreed that the stepson and grandson, as proponents of the note, bore the burden of proving, on the balance of probabilities, that the deceased had testamentary capacity when he wrote the note.

What are the principles for determining testamentary capacity?

There are long-standing principles for determining testamentary capacity. To make a valid will, the testator must have a “sound disposing mind”, meaning the testator must:

– understand the nature and effect of a will;

– recollect the nature and extent of his or her property;

– understand the extent of what he or she is giving under the will;

– remember the people that he or she might be expected to benefit under his or her will; and

– where applicable, understand the nature of the claims that may be made by persons he or she is excluding under the will.

The deceased had testamentary capacity

Justice of Appeal Gillese looked at each of these principles and decided that the deceased had testamentary capacity when he wrote the suicide note. Her Honour noted that the deceased met the formal requirements and used language commonly found in wills. He recollected the extent of his property and wrote that “everything goes to” his stepson and grandson, which showed a clear intention to gift all of his property.

Her Honour noted that the deceased’s wife and business partner’s son might also have been expected to benefit under his will. They were beneficiaries under the prior will. The deceased expressly recalled his wife in the suicide note but chose to disinherit her. Furthermore, there was nothing to suggest that he didn’t understand that his wife might have a claim against his estate. Her Honour said that he had no reason to be concerned about such a claim as she was the more successful financially of the two and had purchased the matrimonial home.

A lack of testamentary capacity cannot be inferred based on the use of alcohol and drugs

Justice of Appeal Gillese explained that it is an error to infer a lack of testamentary capacity merely based on a person’s use of alcohol and drugs. If a testator suffers from a disorder or condition that may impact his or her testamentary capacity, that matter should be considered when applying the relevant legal principles for determining testamentary capacity.

Her Honour noted that the deceased had never been diagnosed or treated for alcoholism, a substance disorder or other mental health challenge. Despite the apparently daily and increasing use of alcohol and drugs, he continued to function at work. The consumption of drugs and alcohol the day before he died did not detract from the finding of testamentary capacity.

Furthermore, profanities in the note directed towards his wife and a statement in the note that the deceased was “beyond my control” because of his wife were not relevant to the elements of the test for testamentary capacity.

Her Honour concluded that the deceased had testamentary capacity because he had a sound disposing mind when he wrote the suicide note. The property was left to his stepson and grandson.

Contact the lawyers at Nulaw in Toronto for guidance on challenging a will and assistance with will disputes

If you are thinking about challenging the will of a family member or friend, the results-oriented, effective estate lawyer at NULaw in Toronto can help. We will help you navigate your options and formulate a pragmatic game plan for moving forward. We will take the time to help you understand your legal rights and will identify any risks and costs that can be anticipated. We also help executors to defend wills against challenges from dissatisfied beneficiaries or would-be beneficiaries.

NULaw and its predecessors have been helping clients in Toronto since 1953. We have extensive knowledge of estate law issues and regularly provide honest and practical legal advice on these matters including all types of will disputes. Contact us online or at 416-481-5604 to book a consultation.

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