Suicide Note Not Admitted Into Probate as Holograph Will

April 16, 2021 Paul Emile Trudelle Litigation Tags: , , , , 0 Comments

We have blogged previously on whether a suicide note could be found to be a valid holograph will. See Suzana Popovic-Montag’s blog “Testamentary Capacity and Suicide”.  Also see my paper on the subject, “Suicide, Suicide Notes and Testamentary Capacity”.

The courts have held that a suicide note can be considered to be a valid holograph will. However, the usual tests of establishing that the note demonstrates sufficient testamentary intent, and the requirement that the propounder establishes capacity remain. The fact that there was a suicide is a consideration but is not conclusive evidence of incapacity.

The court recently considered whether a suicide note was a will in McGrath v. Joy, 2020 ONSC 7454 (CanLII). There, the deceased took his own life after writing a note that purported to void any bequests to his spouse as contained in a prior will.

In considering whether the note was a valid holograph will, the court noted that a suicide note is a “special circumstance” that requires close scrutiny. In light of evidence relating to the deceased’s alcohol and drug use on the day in question, the court found that there were “suspicious circumstances” that “spent” the presumption of capacity and reshifted the legal burden of establishing testamentary back onto the propounder.

The court considered extensive evidence from the deceased’s family and friends about the deceased’s alcohol and drug use, including evidence about his condition on the day of his suicide. The propounder relied on an expert opinion. However, the opinion was inconclusive. The court also looked at the content of the note itself. It was sloppily written. It was a significant departure from formal wills previously made by the deceased.

The court concluded that the propounder had not met the burden of establishing on a balance of probabilities that the deceased had testamentary capacity.

In the costs decision, the judge cited the “modern costs rules with respect to estates” and the general proposition that the “loser pays” that applies to estate litigation. The court held that the propounder “acted unreasonably in attempting to have this suicide note admitted into probate as a holograph will” for a number of reasons, including the fact that he was not acting as an estate trustee seeking the guidance of the court but, rather, was pursuing his self-interest in an attempt to oust the legacies to others, and the fact that his own expert was not able to opine on the deceased’s testamentary capacity. However, the estate also bore some responsibility for costs due to the deceased’s own actions in preparing the note. A blended costs award was made whereby the propounder bore some of the costs and the estate bore the rest.

Thank you for reading.

Paul Trudelle

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