Tag: suicide notes
The general rule, one that most people are probably familiar with when they think of a Will, is that the testator has to have the requisite capacity in order to be able to execute it. But what does that mean?
Generally, it means that a person should be of sound mind and understanding and have sufficient capacity to appreciate the various dispositions of property that would be put into effect with his or her execution of the Will. In other words, the testator must:
(1) understand that they are giving their property to one or more objects of his or her regard;
(2) have the capacity to comprehend the extent of their property and the nature of the claims of others to whom they are giving nothing under the Will.
In the case of a deceased who committed suicide, a question that may arise is whether a person who is about to commit suicide has the appropriate testamentary capacity to be able to execute a Will?
In that regard, it is important to remember that the onus is on the person who is propounding the Will – in other words applying to the court for an order that the Will is valid. In the usual course, there is certainly no presumption against the testamentary capacity of a testator. Indeed, it is quite the opposite. However, in cases where a proposition is made that a death (suicide) note is the last valid will and testament of a testator, it is more likely that someone may object. That is especially the case where an expected beneficiary is disinherited under such a circumstance.
As soon as capacity is called into question, the onus lies on the party propounding the Will to affirm testamentary capacity.
Suicide, in itself, does not equate to testamentary incapacity – although it is a circumstance that may be considered. In fact, a testator may have testamentary capacity even if they are not of entirely sound mind. That means that prior to committing suicide, a person can very well have testamentary capacity. If that is the case, then a death note can be considered a Holograph Will, which in Ontario, in accordance with section 6 of the Succession Law Reform Act, has the following requirements in order to be valid:
(1) It must be entirely in the testator’s hand writing; and
(2) It must be signed by the testator.
There is no requirement for witnesses in the case of a Holograph Will and it must be that the testator intended to dispose of their property after death.
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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.
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