Written on January 17, 2013 – 7:46 am | by Corina Weigl
Today’s blog was co-written by Heela Donsky, Associate at Fasken Martineau DuMoulin LLP.
A recent Court of Queen’s Bench of Alberta decision addressed, among other things, the issue of whether a suicide note can constitute a valid holographic Will.
The facts provide that six months prior to her death, the testatrix made a formal will dividing her estate between her mother and her husband of three years equally. In 2010, following an ongoing battle with mental illness, the testatrix took her own life, leaving a nine-page handwritten suicide note. In her note, the testatrix, among other things, directs her mother to “take my money and do things for yourself.”
The testatrix’s mother applied to the Court for advice and directions as to whether the formal Will or the holograph Will constituted the deceased’s last will and testament. Under the former, the mother would be entitled to half of the deceased’s estate, whereas the latter would entitle her to all of it.
In assessing whether the suicide note constituted a valid holographic Will, Madam Justice Veit applied the standard test to determine whether the technical requirements for making a holograph Will were present at bar. In doing so, she took into account the following:
1. Testamentary Capacity – the Court was satisfied that the testatrix met the test for capacity as at the time of writing the note she knew who the objects of her disposition were (i.e. her mother and husband), evidenced by her referral to each object lovingly in the note. She also knew what her property was as she made specific reference to such. The Court concluded that notwithstanding she may have been in severe pain at the time of making the note, the testatrix had the requisite capacity to make a disposition.
2. Handwritten & Signed – the Court was satisfied that the testatrix wrote the note entirely in her own handwriting and signed the note appropriately.
3. Donative Intent – the Court found that the testatrix did not revoke her prior Will as there was no express or implied indication of such in the note. Further, she made multiple loving references to her husband in the note, rebutting any assertion that she no longer wished to benefit him as she had six months prior. The Court concluded that the direction “take my money and do things for yourself” was precatory in that the testatrix was merely suggesting how her mother should spend her interest and not that she should be entitled to all of her money. The Court paraphrased the comment as “do things for yourself with the money I left you”.
In the result, the suicide note did not meet the requirements of a valid holograph Will as it lacked sufficient donative intent. The formal Will the testatrix had made six months prior to her death was admitted to probate. Had the testatrix demonstrated sufficient donative intent, the suicide note could have constituted a valid holograph Will.
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