All About Estates

Mental Health and Estate Planning; How to Navigate a Changing Conversation

Today’s Blog was written by Emily Papsin, Articling Student at Fasken LLP

On February 10th, the Ontario Court of Appeal released its decision in Joy v. McGrath. The court affirmed the application judge’s finding that Mr. Joy’s suicide note was a valid holograph will, and overturned his finding that Mr. Joy did not have the requisite capacity to make it.

Though the Court of Appeal corrected the error of law made by the application judge, what caught my attention was the language used by the Court in both decisions. What I will focus on today is how and why the terminology employed may benefit from a greater degree of sensitivity, and why it is our responsibility as Estates practitioners to pioneer the change in language used to discuss mental health when it collides with the law.

As an important point of context and as you well know, Estates work is unlike other practice areas that are somewhat divorced from the more animate and intimate aspects of society. Without exception, between receiving instructions and acting on them, clients must share pieces of themselves. I have spent hours combing through dusty safety deposit boxes, finding worthless saved things that wound up jogging priceless once-lost family memories. I was taught to make tea the Kenyan way, using fresh spices and a coffee grinder. I got to spend many hours with a Holocaust survivor who endured the same war my own family narrowly escaped. Everything about this work has the potential to have both a legal, and a personal meaning.

For that reason, I am inclined to suggest that those who practice in this area have a greater responsibility to ensure they can accurately, respectfully, and competently navigate the uncharted waters of our ever-progressing society. At this early stage of my career, I have spent more time working in the world of neuroscience and mental health than I have in law. What became apparent while reading this decision is that the law, while progressive in some respects, continues to be slow to change in others.

Throughout the decision of first instance, the term “committed suicide” is used consistently. The application decision implied that by having committed suicide and being under the influence of drugs and alcohol, the late Mr. Joy was assumed to be incapable of making a Will. At paragraph 24 of the subsequent costs decision, the beneficiary under the holograph will was admonished for making a claim at all, and characterized as acting unreasonably and in his own self-interest, with costs ordered against him for doing so.

In contrast, though the Court of Appeal opens its decision with the same term, the Court is otherwise aware of the deficiencies in the application decision. At paragraph 49 of the appeal, the Court highlighted that “[d]espite setting out and discussing the relevant legal principles for deciding that issue, the application judge failed to apply those principles and erroneously concluded that Mr. Joy lacked testamentary capacity when he wrote the Suicide Note.” Instead, the Court of Appeal notes that the trial judge assumed that suicidality equated to lacking capacity, and remarked that the application judge “simply stated his conclusion and listed a number of points he said assisted him in reaching it. None of those points relate to, or address, the governing legal principles.” The Court proceeded to apply the appropriate legal test and find that Mr. Joy indeed had capacity, and also criticized the application judge for his inappropriate admonishment of the beneficiary for bringing a case that he was legally entitled to.

While the Court of Appeal decision is welcome in the way it severed the tie between an assumption of lack of capacity and dying by suicide, there are aspects of its decision that could have further moved the dialogue.  Perhaps most importantly, the term “committed suicide” has been widely criticized by mental health advocates as one that implicates or blames the sufferer for the outcome. The best way to illustrate this is by example.

Saying that someone “committed suicide” follows the same linguistic pattern as saying someone “committed a crime.” No one has ever “committed a heart attack” or “committed a car accident.” Instead, they have “suffered a heart attack” or “died in a car accident.” We are quite comfortable accepting that heart attacks and car accidents happen to us. Up until recently, we have been equally comfortable accepting that, like crimes, suicides happen because of us. This subtle difference embodies our societal acceptance of culpability, that suicidality is itself a disease, and not simply the symptom of one.

So what could the Court have said instead? Experts have consistently suggested that the appropriate, de-stigmatizing language to use is to say that someone “died by suicide” in the case of a fatal suicide attempt. If that sounds awkward to you, consider this; we would say that someone “died of cancer” without thinking twice. We are simply applying non-culpable language to a situation where fault has no place. We have never blamed our bodies for falling ill. It will serve all of us equally, especially loved ones left behind, to not blame our minds.

I would be remiss if, however, if I did not acknowledge that the Court of Appeal did, at one instance, adopt language sensitive to the distinction made above.  However, the lack of consistency in its decision and the failure to ‘call out’ the lower court’s verbiage was a missed opportunity to lead by example when it comes to how society sees and speaks about suicide.  As stated by Robert Olson, the Librarian at the Centre for Suicide Prevention, “the key to promoting a change in the use of language is to educate and inform those in positions of power – academia, the media, community leaders, educators, just to name a few – that these anachronisms are no longer acceptable.”

I hope you found this helpful. Most importantly, if you or someone you work with is experiencing mental health challenges, there is help available;

About Fasken
Fasken is a full-service law firm with offices in Canada, the U.K., South Africa and China. We work with clients around the globe, advising on legal issues affecting all types of industry, government and individual objectives.

6 Comments

  1. Audrey

    March 18, 2022 - 1:13 pm
    Reply

    Emily, thank you for your thoughtful blog this morning.

  2. Malcolm Burrows

    March 18, 2022 - 1:38 pm
    Reply

    Emily – Thank you for your excellent post. Your comment ” I have spent more time working in the world of neuroscience and mental health than I have in law” will resonate with many professionals. Malcolm

  3. Kenneth Shulman

    March 18, 2022 - 1:57 pm
    Reply

    This is an important issue raised by Emily. Her background in mental health and neuroscience is very relevant to the notion of ‘capacity’ which invites a medico-legal collaboration often involving psychiatric and cognitive phenomena yet is ultimately a legal determination. These ‘language’ concerns also are relevant to terms like ‘insane delusion’ and ‘lucid interval’. Lots of grist for the mill. Thanks Emily.

    Ken

  4. Karen Sparks

    March 18, 2022 - 2:34 pm
    Reply

    Very powerful commentary Emily. Sadly, suicide is far more common than we like to admit.

  5. JANINE AS THOMAS

    March 18, 2022 - 3:51 pm
    Reply

    Excellent blog Emily. Janine.

  6. Sue

    March 18, 2022 - 4:12 pm
    Reply

    Thoughtful post.

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