All About Estates

Alcohol and Drug Use Alone Do Not Negate Testamentary Capacity

In a previous post, I blogged about the case of McGrath v. Joy, where the Court held that a handwritten suicide note was invalid as the deceased lacked testamentary capacity when he wrote it due to drug and alcohol consumption.

The application judge’s decision was recently overturned by Court of Appeal for Ontario.

The Facts:

Joseph Philip Joy (the “deceased”) committed suicide sometime in the early morning of July 13, 2019, at the age of 49. He had spent the previous day working on his boat, smoking hash oil cigarettes, and drinking beer followed by vodka.

He left behind a handwritten note prepared before his death (the “suicide note“). However, the deceased had also made a Will in 2016 (the “2016 Will“) that left bequests to various people, including his step-son from his first marriage, Michael McGrath (“Michael“), Michael’s son, Michael Jr., and the deceased’s long-time friend and a shareholder of his electrical business, Dexter Ramsundarsingh (“Dexter“). Dexter’s father, Steven Ramsundarsingh (“Steven“), was named as estate trustee. Under the 2016 Will, Dexter was to receive the deceased’s interest in the electrical business. The deceased’s second spouse, Joanne Joy (“Joanne“), was to receive the after-tax proceeds of a $600,000 life insurance policy.

In his suicide note, the deceased expressed an intention to void Joanne’s interest in his estate, made no mention of Dexter, and left substantial additional benefits to Michael and Michael Jr. Steven was referred to, but with respect to funeral arrangements. The suicide note was sloppily written, with expletives, and blamed Joanne for the deceased’s actions.  The application judge describe the suicide note as a “profanity laced diatribe”.

The Appeal: 

Michael challenged the correctness of the application judge’s conclusion that the deceased lacked testamentary capacity due to his consumption of alcohol and drugs the day before his suicide. Michael also appealed application judge’s blended costs order, which ordered that certain parties’ costs be payable out of the estate. However, Michael was personally ordered to pay a portion of the other parties’ costs, as the application judge found that Michael had acted unreasonably and in his own self-interest in propounding the suicide note.

The issues on appeal were whether the application judge erred in (i) concluding that the deceased did not have capacity when he wrote the suicide note; and (ii) in awarding costs against Michael personally.

The Court considered the appropriate standard of review, and found that no deference was owed to the application judge’s conclusion that Michael had not met his burden of establishing that the deceased had testamentary capacity when he wrote the suicide note. While the application judge set out the correct legal principles for making the determination, he did not apply them to the facts, and instead focused on the deceased’s use of drugs and alcohol on the day before he wrote the suicide note. A failure to apply the relevant legal principles in determining an issue was an error in principle warranting the Court’s intervention.

The Court found that the deceased had the requisite capacity to make a Will when he wrote the suicide note, as he had a “sound disposing mind”. In particular:

  • There was no doubt that the deceased understood the nature and effect of a Will, having prepared Wills previously, and on the face of the suicide note, he was using language that is commonly found in a Will;
  • The deceased recalled and understood the nature and extent of his property. At the time of his death, the deceased was in financial difficulty, had few assets, and had substantial debt. The suicide note showed the deceased was aware of his assets, and in particular, the $600,000 life insurance policy, as well as his cabin in Newfoundland. The suicide note also stated: “Everything goes to my stepson Michael & grandson Michael“, showing a clear intention on the part of the deceased to bequeath all of his property.
  • The deceased remembered most of the people that he might be expected to benefit under his Will, including Michael, Michael Jr., and Joanne, and referred to them in the document.
  • The deceased understood the nature of the claims that Joanne might make, as she was his spouse, had purchased the matrimonial home, made the mortgage payments, and was the most financially successful of the two.

In addition, the Court was critical of the application judge for inferring a lack of testamentary capacity based on the deceased’s use of alcohol and drugs. There was no evidence that the deceased had a disorder or condition that could support a finding of lack of testamentary capacity, as he had never been diagnosed, treated, or hospitalized for alcoholism, a substance disorder, or other mental health challenge. In addition, the deceased functioned at work. Although witnesses all testified that the deceased was drunk on the night in question, none stated that he was irrational, delusional, incoherent or abnormal.

The expert evidence was unable to provide a definitive opinion of whether the deceased was intoxicated when he wrote the suicide note, or whether he was so intoxicated that the suicide note was not a product of his true beliefs and wishes. The report also confirmed that none of suicide, alcoholism, or other substance abuse disorders, together or in combination, were sufficient to infer a lack of testamentary capacity.

The Court also dismissed the application judge’s finding that the appearance and language of the suicide note had any relevance to the deceased’s testamentary capacity.

In light of the above, Michael, as the propounder of the suicide note, had discharged the burden of showing the deceased had testamentary capacity when he wrote the suicide note, and his appeal on this issue succeeded.

As for the costs award, the Court held that it was plainly wrong and should be set aside. Although he referred to the governing principles on the award of costs in estate litigation, the application judge failed to follow them. At first instance, the Court must determine whether a public policy consideration is at play so as to warrant the parties’ reasonable costs being paid out of the estate, and if so, costs should be paid from the estate. A departure from this approach requires justification from the Court. Here, the public policy considerations applied and the Application was necessary to ensure the estate was properly administered. The deceased wrote a suicide note under suspicious circumstances, which raised reasonable grounds to question the deceased’s capacity. It was the deceased’s conduct that caused the litigation. As such, it was appropriate for the estate to bear the parties’ reasonable legal costs. Michael did not act unreasonably in bringing the Application, nor was he pursuing his self-interest, as Michael’s position on the Application was also of benefit to his minor son, Michael Jr., and the Children’s Lawyer supported that position. The estate was therefore ordered to pay the parties’ lower court and appellate costs (except no costs of the appeal were payable to the Children’s Lawyer).

Take Away

The Court of Appeal for Ontario was critical of the application judge’s focus on the deceased’s use of drugs and alcohol in finding a lack of testamentary capacity. Drug and alcohol use alone do no negate testamentary capacity. There must be evidence to show that the deceased did not have a sound disposing mind, having regarding to the legal principles. This is consistent with previous decisions of the Court of Appeal for Ontario, such as Dujardin v. Dujardin, which I blogged about here.

About Rebecca Studin
Rebecca Studin was called to the Bar in 2009. Before joining de VRIES LITIGATION LLP, Rebecca practised estates and commercial litigation at a full-service international law firm in Toronto. Rebecca’s estates experience includes will interpretation applications, will rectification applications, solicitor’s negligence actions, and other estates and trusts matters. Rebecca obtained her law degree from Osgoode Hall Law School after earning her honours bachelor of arts degree from Glendon College, York University. Following her call to the Bar, Rebecca was selected as a Fox Scholar and spent a year training as a barrister at the Middle Temple, Inns of Court, in London, UK.

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