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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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.
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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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Yesterday, I blogged on the Carter v. Canada (Attorney General) decision on assisted suicide, and how it addressed the issue of the mental capacity of the individual.
In thinking about the case from an estates perspective, I considered the potential impact of assisted suicide on life insurance. Most life insurance policies have a contestability clause that provides that insurance will not be paid out if the policy holder commits suicide within two years. Thus, an insurer may not pay out if there is an assisted suicide within two years. However, as noted in a posting on Insure.com, the odds of the contestability clause issue arising are “very small”. Most insurers will not issue a policy to a terminally ill applicant. If the applicant fails to disclose the medical condition, the policy may be void for that reason alone.
Another issue that arises is whether the public policy that precludes a person from inheriting from an estate on the basis that the potential beneficiary should not benefit from the crime. The Carter decision strikes down the provision criminalizing assisted suicide, but only in the context of “physician-assisted suicide”. The wording of the declaration goes even further, and declares that the provisions are of no force and effect
“to the extent that they prohibit physician-assisted suicide by a medical practitioner in the context of a physician-patient relationship, where the assistance is provided to a fully-informed, non-ambivalent competent adult patient who: (a) is free from coercion and undue influence, is not clinically depressed and who personally (not through a substituted decision-maker) requests physician-assisted death; and (b) is materially physically disabled or is soon to become so, has been diagnosed by a medical practitioner as having a serious illness, disease or disability (including disability arising from traumatic injury), is in a state of advanced weakening capacities with no chance of improvement, has an illness that is without remedy as determined by reference to treatment options acceptable to the person, and has an illness causing enduring physical or psychological suffering that is intolerable to that person and cannot be alleviated by any medical treatment acceptable to that person.”
Thus, the criminality of assisted suicide involving, say, a husband and wife, or parent and child, remains. Such an assisted suicide will therefore likely trigger the prohibition on inheriting.
The wording of the declaration of the court addresses another issue relevant to our practice. While it is generally understood that by a Power of Attorney, the grantor can grant power to do anything that the grantor can do except make a will, the declaration strikes down the criminality of physician assisted suicide only if the patient makes that decision personally, and not through a substituted decision maker.
Have a great weekend.
Paul Trudelle – Click here for more information on Paul Trudelle.
There has been much in the media lately on the British Columbia Supreme Court decision concering assisted suicide.
In the decision, Carter v. Canada (Attorney General), 2012 BCSC 886 CanLII, the Court struck down the provision in the Criminal Code that prohibits physician-assisted suicide.
(Section 241 of the Criminal Code provides that “Every one who (a) counsels a person to commit suicide, or (b) aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.”)
The lengthy, well-organized decision deals with the question in great detail.
One aspect of the decision particularly pertinent to our area of practice addresses the government’s position that the impugned section is necessary in order to avoid the risk of wrongful death of incompetent persons. The government argues that it can be difficult to determine whether a person is capable of making a decision to end their own life.
The court accepted evidence to the effect that, even taking into account the possibility of cognitive impairment or depression in patients, and the possibility that physicians may be influenced by inaccurate assumptions about their patients, it is feasible for physicians to assess competence with high reliability.
The court concluded, on this narrow point, that it is feasible for properly-qualified and experienced physicians to reliably assess patient competence, including in the context of life-and-death decisions, so long as they apply a very high level of scrutiny appropriate to the decision and proceed with great care.
Thank you for reading.
Paul Trudelle – Click here for more information on Paul Trudelle.
As of last night, the parents of Junior Seau, who are from the island of Aunu’u, American Samoa, were meeting with Samoan elders to discuss how to respond to requests by researchers for the opportunity to study Seau’s brain. Last Wednesday, Seau, former linebacker for the San Diego Chargers, was found dead in his Oceanside, California home. His death was ruled a suicide. The media is saturated this week with discussion of whether Seau’s NFL career played a role in his early death. There are a number of indisputable facts, between which one can interpolate:
• Seau took his own life by shooting himself in the chest. Fifteen months ago, former NFL safety Dave Duerson died of a self-inflicted gunshot wound to the chest, having left a suicide note asking for his brain to be donated for research. The Boston University School of Medicine Center for the Study of Traumatic Encephalopathy determined that Duerson’s brain indeed showed signs of CTE, the progressive, degenerative disease associated with repetitive closed head injuries.
• Up until April 19, 2012, Former Atlanta Falcons safety Ray Easterling was the lead plaintiff in a class action lawsuit against the NFL over concussion-related injuries. Since his death last month, by suicide, his widow has vowed to continue to fight the lawsuit her husband started after 20 years of suffering from symptoms of repetitive head trauma including memory loss, mood changes and depression.
• According to a 2011 study conducted by the Matthew A. Gfeller Sport-Related Traumatic Brain Injury Research Center at the University of North Carolina, the average life expectancy of a retired NFL player is 55 years. Some insurance providers have indicated that this is actually an overestimation, and that in fact the average age is somewhere closer to 51 years. For comparison purposes, the average male life expectancy in the United States is 78.2 years. [Note: If you played for the San Diego Chargers in 1994’s Super Bowl XXIX, then the odds against you are significantly grimmer. Eight of those teammates are dead, all before reaching the age of 45; a statistical anomaly since the 8 deaths lacked common cause.]
• The same UNC study suggested that retired NFL players suffer from dementia at a 37% higher rate than average.
• A 2006 report in the St. Petersburg Times found that the more games and practices an NFL player survives, the quicker he dies. In his first 14 pro seasons, Seau missed only 9 games.
If Seau’s parents decide not to donate his brain for research, we may never know with certainty whether he suffered from Chronic Traumatic Encephalopathy. One thing is for sure, there’s something about playing in the NFL that doesn’t bode well for one’s life trajectory. Are repeated head hits causing organic damage to the brain, after which depression is the next domino to fall? Or perhaps, as in Easterling’s case, organic brain damage brings on intolerable shifts in personality and cognitive functioning, but in an unkind twist, leaves one with just enough insight to see what lies ahead. Roger Goodell has made great strides since becoming NFL commissioner in 2006, introducing preseason baseline concussion testing, for example, not to mention the unprecedented smackdown of the Saints players implicated in the bounty scandal earlier this month. His work is far from finished.
Jennifer Hartman, guest blogger