Capacity in the face of Suspicious Circumstances

By: Angela Papalia

An adult is presumed to have testamentary capacity. A person alleging otherwise has the burden of proof to show otherwise; however, when suspicious circumstances exist this onus is reversed:
… wherever a Will is prepared under circumstances which raise a well-grounded suspicion that it does not express the mind of the testator, the Court ought not to pronounce in favour of it unless that suspicion is removed.
There is no exhaustive list of suspicious circumstances, however they generally exist when a testator is in the hospital near end of life, infirm and vulnerable, exhibit other traits of a condition that may impact comprehension or decision making, where a party who benefits from the Will was involved in its preparation, if a language barrier exists, or when a presumed beneficiary (spouse/child…) is omitted without explanation.
A suicide note submitted as a holographic Will constituted special circumstance in McGrath v Joy. The ONCA discussed capacity and how the onus of proof is applied with respect to drugs voluntarily consumed, concluding that intoxication does not automatically constitute a lack of capacity and the facts still need to be applied to the relevant test.  

Arguments were not presented as to whether the document met the requirements for a holographic Will under s. 6 of the SLRA and focused solely on capacity.
At trial, Mr. Joy was found to lack the requisite capacity to create a holographic Will as he had been drinking just prior to committing suicide. The ONCA reversed this.

Test 

To have a sound disposing mind, the 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 the claims that may be made by persons he or she is excluding from the will.
In examining whether the Appellant had met his burden, the Application Judge relied on conversations the testator had earlier that day and his subsequent death to support a finding that capacity had not been proven and the holographic Will was invalid.

Standard of Review

The ONCA gave no deference to the application judge’s conclusion, finding that the correct test was recognized but not properly applied.
… failure to apply the relevant legal principles in determining an issue is an error in principle warranting this court’s intervention... because the application judge did not apply the relevant legal principles, he made none of the findings of fact called for by their application. Consequently, there are no findings of fact which attract deference on the palpable and overriding standard.

Appeal

The parties agreed that 1) the document met the requirements for a holographic Will, 2) suspicious circumstances existed, and 3) it was the Appellant’s onus to prove suspicious circumstances on the balance of probabilities.
Capacity, and how it applies to drugs and alcohol.

In applying the test for capacity, the ONCA explained that Mr. Joy:
understood the nature and effect of a Will as he had previously made his own Wills and properly named the beneficiaries & executor 
recalled the nature and extent of his property as he had few financial assets, but recognized them by specifically addressing his insurance policy & cabin
c.   understand the extent of what he was giving under the Will
d.  remembered the people that might be expected to benefit as he addressed his son, stepson and wife; and,
e.   understood the nature of the claims that may be made by persons he excluded under the will, namely Mrs. Joy with a specific exclusion

Capacity

Mr. Joy did not lack capacity solely because he had been using drugs and alcohol. Rather, this was considered in the context of
a.   Mr. Joy’s regular use of drugs and alcohol, and the amount he consumed of both substances the day before he died;
b.   Dr. Sinyor’s evidence that he could not confirm incapacity; and
c.   The suicide note was sloppily written, laced with profanities directed at Ms. Joy, and contained a statement in it which said that he was beyond my control because of Ms. Joy. 
a.   Mr. Joy’s Substance Use
Mr. Joy did not lack capacity solely because he had consumed substances; rather, just as with any other condition it must be considered in context and applied to the relevant principles. Mr. Joy’s daily alcohol consumption, while continuing to function at work and in his personal life was relevant.
The Court referenced Dujardin where the ONCA upheld the testator’s capacity where it was admitted he had consumed alcohol daily, and recognized that he had an organic brain injury – but when applying the relevant principles found that he did have capacity at the relevant time.
b. Dr. Sinyor’s evidence 
The application judge had dismissed Dr. Sinyor’s testimony while the ONCA allotted weight to his evidence as a psychiatrist with expertise in the field of suicidality, noting that Dr. Sinyor could not conclude from the suicide note that Mr. Joy was intoxicated. 
Dr. Sinyor did not have the benefit of the cross-examination evidence when he wrote his report but he had been told of Mr. Joy’s alcohol and substance use. A toxicology screen was not performed and there was no clinical evidence of incapacity. 
Dr. Sinyor’s expert evidence assists in understanding how different capacity issues may arise when people have drugs and/or alcohol in their system. 
The Report confirms that none of suicide, alcoholism, or other substance abuse disorders, together or in combination, are sufficient to infer lack of testamentary capacity.
c. The Appearance of and Language in the Suicide Note
The application judge had relied on the language in the suicide note in concluding that Mr. Joy lacked capacity. 
The ONCA disagreed as they were not connected as relevant to the elements of the test for a sound disposing mind and there was no evidence that the facts were notably different that Mr. Joy’s regular conduct:
Mr. Joy’s handwriting in the suicide note was sloppy – however his handwriting was generally sloppy. 
It contained profanity laced diatribe against Ms. Joy – however, this was explained by his distaste for her and his common phrases in conversation
Mr. Joy’s statement in that note that he was beyond my control because of Ms. Joy – again, his feelings for Mrs. Joy were clear, and also the cause of the totality of his actions
d.  Conclusion on a Sound 

Disposing Mind

The ONCA concluded that Mr. Joy exhibited a sound disposing mind and his understanding of the nature and effect of a Will by recognizing the nature and extent of his property, who might expect to benefit from his estate, including Ms. Joy’s potential claims as an excluded party and the extent of what he was giving under the Will. 

Codicil 

The ONCA also looked at whether the note was a holographic Will on its own, or if it should be treated as a Codicil. 
ONCA found that it was a Will, pursuant to language in s. 6 of the SLRA, which gives authority to a create a holographic Will and because the language in the note addressed the complete disposition of assets, rather than a comment on his prior Will.

Endnotes
1 Tyrrell v. Painton et al., [1894] p. 151 at 159, Davey L.J. 
2 2022, ONCA 119 (CanLii)
3 Banks v. Goodfellow (1870), L.R. 5 Q.B. 549 (U.K. Queen’s Bench Div.).
4 A testator may make a valid will wholly by his or her own handwriting and signature, without formality, and without the presence, attestation or signature of a witness.  R.S.O. 1990, c. S.26, s. 6.
5 Hall v. Bennett Estate (2003), 2003 CanLII 7157 (ON CA), 64 O.R. (3d) 191 (C.A.)
6 Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 27
7 Skinner v. Farquharson (1902), 1902 CanLII 87 (SCC), 32 S.C.R. 58 at para 50, Banks v. Goodfellow
8 Dujardin v. Dujardin, 2018 ONCA 597, 423 D.L.R. (4th) 731

Angela Papalia practices with 
Regency Law Group. 

She can be reached at:
5 Main Street West, Suite 2010
Hamilton, ON
L8P 1H1
Tel:  905-383-0500
Email: 
[email protected]