Can a suicide note be a valid holograph will? Maybe, and it depends upon where you live.
The Ontario case of McGrath v. Joy, which decision was released at the end of 2020, dealt with whether a suicide note was a valid holograph will. My colleague, Rebecca Studin, recently blogged about the case, where it was found that the suicide note was not a valid holograph will. The judge commented, in part, that the suicide note was merely a “profanity laced diatribe” which could not stand as a valid testamentary document.
Gregoire v. Cordani, 2020 BCSC 276 (CanLII) (“Gregoire”), a British Columbia decision also released in 2020, similarly dealt with the issue of whether a suicide note was a valid holograph will, but ended with a different result.
The facts in Gregoire are straightforward. Jean-Claude Gregoire and Nicola Cordani were common law spouses. Ms. Cordani suffered from depression and anxiety and had cut ties with some family members, including ceasing communication with her mother and two of her brothers.
In September 2018, Nicola was found dead from an apparent suicide, with a handwritten note found nearby. Despite searches, no other note or testamentary instrument could be located.
Mr. Gregoire commenced an application under section 58 of the Wills, Estates and Succession Act (the “WESA”) to have the court validate the suicide note as a holograph will, even though it did not meet the legislative requirements set out in section 37 of the WESA (i.e. there were no witnesses). British Columbia operates pursuant to a substantial compliance regime and section 58 of the WESA provides the court with the power to cure such deficiencies. Whether section 58 applications will succeed depends upon: (1) whether the document is authentic; and (2) whether it represents the deceased’s testamentary intentions. Testamentary intentions must be deliberate or fixed and final expression of intention as to the disposal of property on death.
The court reviewed the suicide note in detail (it is reproduced in the decision at paragraph 29). Among other things, the suicide note listed various assets with sufficient specificity, named several beneficiaries, and excluded Ms. Cordani’s mother and two brothers, which accorded with the narrative that she was estranged from them. The suicide note also stated, “This is my will please respect my wishes” and was dated and signed by Ms. Cordani, who additionally included her social insurance number.
Ultimately, the court concluded (in part by relying upon the contents of the suicide note itself) that it was Ms. Cordani’s intention to create a will and further that it had the authority under s. 58 of the WESA to cure any technical defects. Accordingly, the court found that a valid holographic will had been created.
Certainly, the decision in Gregoire stands in stark contrast to the aforementioned case of McGrath v. Joy. Part of the differences between the two cases may be attributed to the different approaches of the two provinces to curing technical defects in wills; specifically, Ontario employs a strict compliance regime while British Columbia operates under a substantial compliance regime.
Notably, Ontario appears to be moving away from the strict compliance regime to a substantial compliance regime in some respects. On May 1, 2021, we can expect various updates to the Succession Law Reform Act, which will include, but not be limited to, broadening the court’s powers to remedy deficiencies in wills. It will be interesting to see how cases dealing with issues relating to due execution of wills will be treated in the interim and after the new updates come into effect.