In a recent Ontario decision, the court determined that the deceased’s suicide note could not be admitted as a holograph will, in large part due to his intoxicated state on the day in question.

Deceased Leaves Suicide Note

The deceased died by suicide on July 13, 2019, at the age of 49.

In 2016, the deceased had signed a will, which was typed, signed and witnessed. In the will, he left his interest in his companies to a long-time friend and the proceeds of his life insurance policy to his spouse.

However, on the day of his death, the deceased also left a suicide note. The note, which was handwritten and signed by the deceased, attempted to void his spouse’s benefits to any of his estate, stating“anything in my Will that has [the spouse’s] name on it is VOID”.  The suicide note went on to give directions about his spouse not attending his funeral. The note also directed his long-term friend as to certain funeral arrangements and other matters. Finally, the note provided substantial additional benefits to the deceased’s step-son and step-grandson from his first marriage.

Several witnesses testified that the deceased had appeared drunk on the day of his suicide and that he had struggled with substance abuse.

The deceased’s step-son brought an application seeking a declaration that the suicide note was a valid holograph will.

The deceased’s spouse and the long-term friend opposed the step-son’s application and took the position that the suicide note ought not to be admitted into probate as a holograph will.

At issue before the court was whether or not the deceased had the requisite mental capacity under the circumstances, which the parties acknowledged as suspicious.

Court Rules That Suicide Note is Not a Valid Will

The court began by explaining that holograph wills have long been an accepted form of testamentary disposition in Ontario. The court stated:

“Holograph wills play an important role in a testator documenting his or her intentions prior to death.  As long as they are hand-written by the testator and signed by him or her, they can be admitted to probate provided that capacity is not an issue. But caution must be exercised when there are special circumstances. Unlike a formal will prepared by a lawyer, notes and observations of the lawyer taking instructions, reading over the will and due execution do not take place. Even a typed will signed by the testator and witnessed by two people can provide an opportunity for at least the witnesses to be examined as to their observations when the will was signed. Again, even this modest level of scrutiny is not available for a holograph will.

A suicide note is certainly a special circumstance that requires close scrutiny. It is not a holograph will unless it meets the statutory requirements and is supported by finding of testamentary capacity.”

With regard to the spouse and long-term friend’s allegations of suspicious circumstances, the court cited the Supreme Court of Canada decision Vout v. Hay, which explained that suspicious circumstances may be raised by: (1) circumstances surrounding the preparation of the will, (2) circumstances tending to call into question the capacity of the testator. In Vout, the Supreme Court further explained:

“[W]here suspicious circumstances are present, then the presumption is spent and the propounder of the will reassumes the legal burden of proving knowledge and approval. In addition, if the suspicious circumstances relate to mental capacity, the propounder of the will reassumes legal burden of establishing testamentary capacity. Both of these issues must be approved in accordance with the civil standard.”

As such, the legal burden of establishing the deceased’s testamentary capacity fell upon the step-son as the propounder of the suicide note.

After reviewing the evidence, the court concluded that the step-son had not met his evidentiary burden of proving that the suicide note was in fact a holograph will. The court stated that, while no individual factor had been determinative, the cumulative effect of the evidence related to the deceased’s alcohol abuse and intoxicated state lead to the conclusion that the deceased’s testamentary capacity had not been proven by the step-son.

As a result, the court dismissed the step-son’s application to admit the suicide note as a holograph will.

Get Help

Protecting your assets and ensuring your family and other loved ones are provided for in the future is not something most people want to think about. However, effectively managing your wealth and protecting your spouse, children, and your estate is something that everyone should do at some point to ensure that your express wishes are carried out.

An effective estate plan goes far beyond just creating a will. You should also consider securing other important legal tools including powers of attorney (for personal care and for property), trusts (including Hansen trusts if you have disabled children or other dependants), as well as the designation of beneficiaries on life insurance policies, pensions, and other key documents.

The best way to guarantee that your wishes will be carried out exactly as you would like them to is to consult with an experienced estate lawyer. At Campbells LLP in Oakville, our wills lawyers have been helping clients with Wills and estates matter since 1999. We will meet with you to help you clarify your long-term objectives and will create a personalized, effective estate plan designed to meet those goals. As your family grows or changes, we will ensure your estate plan is amended as required to ensure it continues to protect your ultimate objective.

At Campbells LLP, we are proud of the strong, long-lasting relationships we build with the clients for whom we craft Wills and estate plans. With our help, you can ensure that your family and loved ones are taken care of, that your wealth is distributed as you wish, and that the risk of any potential litigation is minimized.  Our overall mission is to provide the right solution for each and every one of our clients. Contact us online or at (905) 828-2247 to learn more about our services.