Tag: suicide

16 Apr

Suicide Note Not Admitted Into Probate as Holograph Will

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

11 Jun

Can a Death Note Ever be Considered a Will?

Kira Domratchev Capacity, Estate & Trust, Wills Tags: , , , , , , , , , 0 Comments

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.

Thanks for reading.

Kira Domratchev

Find this blog interesting? Please consider these other related posts:

Testamentary Capacity and Suicide

Will Drafting and Testamentary Capacity

Age and Testamentary Capacity

01 Mar

Impact of Physician-Assisted Death on Estate and Insurance Planning

Nick Esterbauer Beneficiary Designations, Elder Law Insurance Issues, Estate Planning, Ethical Issues, Health / Medical, RRSPs/Insurance Policies Tags: , , , , , , , , , , , , 0 Comments

For many Canadians, one or more life insurance policies represent an important component of an estate plan.  If a policy cannot be honoured as a result of the cause of the insured’s death, this may completely frustrate his or her testamentary wishes.

The terms of life insurance policies typically address the issue of whether a beneficiary will be entitled to the insurance proceeds in the event that an individual commits suicide.  Policy terms typically include a restriction as to the payout of the policy if the insured dies by his or her own hands within a certain of number of years from the date on which the policy is taken out (most often two years).

With the decriminalization of physician-assisted death, there was initially some concern regarding whether medical assistance in dying would be distinguished from suicide for the purposes of life insurance.  The preamble to the related federal legislation, however, distinguishes between the act of suicide and obtaining medical assistance in dying.

As mentioned by Suzana Popovic-Montag in a recent blog entry, the Canadian Life and Health Insurance Association suggested in 2016 that, if a Canadian follows the legislated process for obtaining medial assistance in dying, life insurance providers will pay out on policies that are less than two years old.  Since then, the Medical Assistance in Dying Statute Law Amendment Act, 2017 has come into force to provide protection and clarity for Ontario patients and their families.  This legislation has resulted in amendments to various provincial legislation, including the Excellent Care for All Act, 2010, a new section of which now reads as follows:

…the fact that a person received medical assistance in dying may not be invoked as a reason to deny a right or refuse a benefit or any other sum which would otherwise be provided under a contract or statute…unless an express contrary intention appears in the statute.

The amendments provided for within the legislation introduced by the Ontario government represent an important step in the recognition of physician-assisted death as a right that is distinguishable from the act of suicide.  They also confirm the right of individuals who access medical assistance in dying to benefit their survivors with life insurance policies or other benefits.

Thank you for reading,

Nick Esterbauer

 

Other blog posts that may be of interest:

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