Albert Camus once famously observed: “There is but one truly serious philosophical problem and that is suicide. Judging whether life is or is not worth living amounts to answering the fundamental question of philosophy.” (see Camus’s text, The Myth of Sisyphus: And Other Essays, reissued in 1991) 

Philosophy aside, another question often arises in the wake of a suicide, particularly when a suicide note is left behind – whether the person who chose to take his or her life had the capacity necessary to execute a testamentary instrument. This is the very issue that the Court of Appeal recently grappled with in McGrath v Joy, 2022 ONCA 119.   

In this case, Mr. Joy ended his life after using drugs and alcohol, leaving a “profanity laced” note which stated that he did not want his wife to “get anything” and that anything in his will with “her name on it is VOID.” Instead, Mr. Joy directed “everything” to go to his stepson and grandson. Mr. Joy’s stepson applied to the court to determine whether the suicide note was a valid will.  

The application judge refused to admit the note to probate, even though it was wholly in Mr. Joy’s handwriting and complied with the statutory requirements for a holograph will set out in section 6 of the Succession Law Reform Act. In the original court decision, reported at McGrath v Joy, 2020 ONSC 7454 (CanLII), the judge found that the applicant did not meet the burden of establishing on the balance of probabilities that Mr. Joy had testamentary capacity when he wrote the note. Paul Trudelle wrote a blog post about the original decision – to learn more, see “Suicide Note Not Admitted Into Probate as a Holograph Will”. 

The original decision was reversed on appeal, with the Court of Appeal finding that Mr. Joy had testamentary capacity when he wrote the note, making it a valid holograph will.  

In revisiting how to determine testamentary capacity where there are suspicious circumstances surrounding the preparation of a will, the Court of Appeal noted that the application judge cited the correct test. To have a “sound disposing mind,” a testator must: 

1. understand the nature and effect of a will; 
2. recollect the nature and extent of his or her property;  
3. understand the extent of what he or she is giving under the will;  
4. remember the persons that he or she might be expected to benefit under his or her will; and 
5. where applicable, understand the nature of any claims that may be made by persons he or she is excluding from the will.  

However, the application judge erred by making no attempt to apply these legal principles. On this basis, the Court of Appeal held that no deference was owed to the lower court’s decision and reviewed it on the standard of correctness. 

In reversing the lower court’s decision, the Court of Appeal applied the available evidence to the applicable legal principles. The Court found that Mr. Joy understood the nature and effect of a will when he wrote his suicide note, having prepared two holograph wills previously, and that Mr. Joy “clearly thought that he was writing his will” when he wrote the note. He even used language commonly found in wills by making a “declaration” that anything he left to his wife in a previous will was “void.”  

The Court also held that Mr. Joy was aware of his assets when he wrote the note, that he understood the extent of what he was giving, and that he remembered most of the people who might be expected to benefit under his will, including the two beneficiaries named in the note. The absence of a bequest to Mr. Joy’s wife was not proof that Mr. Joy failed to remember her; rather, the note expressly indicated his choice to disinherit her. Mr. Joy also had no reason to be concerned about his wife bringing a claim against his estate since she was more financially successful than him.  

Taking all of the foregoing into consideration, the Court of Appeal concluded that Mr. Joy had a sound disposing mind when he wrote the note and that the application judge erred in deciding the matter largely on the basis of Mr. Joy’s use of drugs and alcohol. More specifically, the Court held:  

It is an error to infer a lack of testamentary capacity based on a person’s use of alcohol and drugs. If a testator suffers from a disorder or condition that may impact on his or her testamentary capacity, that should be considered when applying the relevant legal principles for determining testamentary capacity. 

Since Mr. Joy had never been diagnosed, treated, or hospitalized for alcoholism or drug use, or other mental health challenges, and continued to function at work despite his increasing use of drugs and alcohol, there was no evidence upon which the Court could find a lack of testamentary capacity. Even the day before Mr. Joy died, there was no evidence that he presented as “irrational, delusional, incoherent, or abnormal.”  

The Court also held that the fact the note was written sloppily and included profanities was irrelevant to the test for a sound disposing mind “absent an acceptable explanation” and that neither factor could be used to properly decide the issue of testamentary capacity. 

This case aptly demonstrates that a suicide note can be a valid testamentary instrument, even if the testator took his or her own life while under the influence. 

Thank you for reading, and have a great day.   

Ian Hull