Testamentary Capacity and Suicide

December 9, 2015 Suzana Popovic-Montag Capacity, Uncategorized, Wills Tags: , , , , 0 Comments

According to the World Health Organization (“WHO”), someone around the world commits suicide every 40 seconds. The suicide rate for Canadians, as measured by the WHO, is 15 per 100,000 people. Research also shows that although suicide typically arises as a result of the interaction between multiple factors, mental illness, specifically depression, is often present. This is why when a cause of death is suicide and it occurred close in time or in conjunction with the making of a will, there may be some question as to testamentary capacity.

One of the most common concerns is whether the mental illness or depression was severe enough to bring into question the testator’s testamentary capacity. Often, a person suffering from severe depression may feel isolated or rejected from loved ones. This may cause them to be more prone to making certain last minute testamentary dispositions that are not in accordance with family obligations or that deviate sharply from a previous will.

In these situations, the response from the courts has been to continue to apply the test for testamentary capacity as set out in Banks v Goodfellow. As Paul Trudelle points out in his paper, “Suicide, Suicide Notes, and Testamentary Capacity”, while the fact of suicide is admissible as a consideration, it is not conclusive.

Another issue is raised when the deceased leaves behind a suicide note that doubles as their last will and testament. This situation may bring into question issues surrounding formal requirements as well as potential interpretation concerns. The courts have gone back and forth on upholding these notes as valid wills as it is not always clear whether the note is an  expression of the deceased’s testamentary intent or merely precatory.

Thank you for reading.

Suzana Popovic-Montag

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