In McGrath v. Joy, 2020 ONSC 7454, the Court considered whether the contents of a suicide note could be admitted to probate as a holograph Will, and in particular, whether the deceased had the requisite testamentary capacity to make a Will prior to taking his own life.
Sadly, Joseph Philip Joy (“Jody“) committed suicide sometime in the early morning of July 13, 2019, at the age of 49. He left behind a handwritten note prepared before his death. However, Jody had also signed a Will in 2016 that left bequests to various people, including Jody’s step-son, Michael McGrath (from his first marriage to Jacqueline McGrath), Michael’s son, Michael Jr., and Dexter Ramsundarsingh, Jody’s long-time friend and a shareholder in Jody’s electrical business. Dexter’s father, Steven Ramsundarsingh, was named as estate trustee. Under the Will, Dexter was to receive Jody’s interest in the electrical business. Jody’s second spouse, Joanne Joy, whom Jody met in 2013 and married in 2016, was to receive the after-tax proceeds of a $600,000 life insurance policy.
In his suicide note, Jody 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.
Michael commenced an application seeking a declaration that the suicide note was a valid holograph Will. Both Joanne and Dexter, who were named as respondents to the application, took the position that the suicide note ought not to be admitted into probate as a holograph Will. Alternatively, in the event the suicide note was found to be a valid holograph Will, then Dexter took the position that it should be construed as a Codicil to the 2016 Will.
The affidavit and cross-examination evidence indicated that Jody abused alcohol and drugs over many years. Jody’s marriage to Joanne was rocky, and in March 2019, Jody had moved out of the matrimonial home, but moved back in later that year, as the spouses were working out their difficulties. On the day of his death, witnesses confirmed that Jody had consumed both drugs and alcohol, and that his consumption had been increasing over the last six months. There was also evidence that Jody’s business had recently lost a bid on a contract, and that he was depressed. A friend of Jody’s deposed that she had spoken to Jody on the night of July 12, 2019 over Facetime, and that something happened during the call that caused Jody to leave the call and then slam the door. Joanne’s evidence was that Jody left in a rage. Although Joanne went to bed beside Jody later that night, she found him hanging in the hallway the next morning.
The Court described the suicide note as a “profanity laced diatribe aimed at Jody’s spouse, Joanne, written shortly before Jody’s death” which stated that “anything in my Will that has her name on it is VOID.” The note contained many spelling errors, words crossed out, and some capitalized words. The handwriting and signature were “sloppy and all over the place”.
Michael submitted an expert report of a psychiatrist, Dr. Mark Sinyor, who was unable to make a determination as to whether or not Jody had consumed sufficient alcohol so as to negate his testamentary capacity on the night in question. The Court therefore placed little weight on the expert report. However, the expert had not been provided with all of the evidence relating to Jody’s alcohol and drug consumption.
Regarding holographs, pursuant to 6 of the Succession Law Reform Act, R.S.O. 1990, C. S. 26, and Rule 74.04(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as long as the document in question is handwritten by the testator and signed by him or her, it may be admitted to probate, provided that the testator’s capacity is not an issue. A suicide note that meets these criteria can also be a holograph and admitted to probate, although caution must be exercised under the circumstances.
Applying the Supreme Court of Canada’s decision in Vout v. Hay, 1995 CanLII 105, the Court noted that suspicious circumstances may be those surrounding the making of the Will and circumstances which call the testator’s capacity into question, in which case the propounder of the Will has the legal burden of proving that the testator had knowledge and approval of the Will. In the present case, given the suspicious circumstances surrounding Jody’s suicide, the legal burden of establishing testamentary capacity fell upon Michael as the propounder of the Will.
To have testamentary capacity, the testator must be of a sound and disposing mind, in that he or she must (1) understand the nature and effect of a Will; (2) recollect the nature and extent of his or her property; (4) remember the people he or she might be expected to benefit under the Will; and (5) understand the nature of the claims that may be made by persons he or she is excluding under the will.
The Court also reviewed authorities on suicide letters as possible holograph Wills in light of the above test, and found that a person who makes a testamentary instrument and then commits suicide can have testamentary capacity and committing suicide does not in itself negate or undermine capacity.
The Court was not satisfied that Michael had met his evidentiary burden of proving on a balance of probabilities that Jody’s suicide note was a holograph Will, as Michael had not proved Jody’s testamentary capacity. Numerous witnesses confirmed Jody’s substance abuse over many years, as well as on the night before his death. Although Jody had made plans to go boating the next day and had plans to travel in the future, his note stated that “I am beyond my control… because of her.” The note was sloppy and showed “pure disdain” for Joanne.
The application to admit the suicide note as a holograph Will was therefore dismissed.
The Court’s decision confirms that suicide alone does not negate capacity. Indeed, there have been cases where suicide notes were admitted to probate where the note met the statutory criteria of a holograph Will and the requisite testamentary capacity was established. Here, the Court was not satisfied of the testator’s capacity in light of the suspicious circumstances, and in particular, the evidence of the testator’s alcohol and drug abuse over many years and on the night in question. In addition, the presentation, tone and content of the suicide note seems to have played an important part in the Court’s analysis.