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Estates Law News

By Jennifer Vrancic

June 2021


The Ontario Superior Court of Justice recently had cause to examine an interesting question: can a suicide note be admitted to probate as a holograph Will?

In McGrath v. Joy, 2020 ONSC 7454, the Court examined the tragic suicide of Joseph Joy (called “Jody”) and whether his suicide note could be a valid holograph Will.

Jody had been married for 3 years to his wife, Joanne. He had a step-son, Michael, from a previous marriage, and treated Michael’s son, Michael Jr., as a grandson. His friend, Steven, was his long time business partner, and Steven’s son, Dexter, was also a friend and shareholder in his business.

Jody had a substance abuse problem, and consumed large quantities of alcohol and smoked hash oil when he was not working.

Jody had created previous Wills in 2014 and 2016. The 2016 Will made provisions for Joanne, Michael, Michael Jr., and Dexter, and named Steven as Estate Trustee.

On the day of Jody’s death, there was affidavit evidence that he was drunk and likely otherwise impaired. During a FaceTime call with Joanne and a mutual friend, something happened which caused Jody to leave in a rage. That night, Joanne went to bed, where Jody was already asleep. When she woke around 5:00 a.m., Jody was not there. She found him hanging in the hallway.

Jody had left a suicide note. The note was described by the court as “a profanity laced diatribe against his spouse, Joanne.” It attempted to void Joanne’s benefits to any of Jody’s estate. The note directs greater benefits for Michael and Michael Jr. It does not mention Dexter at all. It directs Steven to make certain funeral arrangements among other things.

The case turned on the issue of testamentary capacity. As the Court said at paragraph 35:

Holograph wills play an important role in a testator documenting his or her intentions prior to death.  As long as they are hand-written by the testator and signed by him or her, they can be admitted to probate provided that capacity is not an issue.  But caution must be exercised when there are special circumstances.  Unlike a formal will prepared by a lawyer, notes and observations of the lawyer taking instructions, reading over the will and due execution do not take place.  Even a typed will signed by the testator and witnessed by two people can provide an opportunity for at least the witnesses to be examined as to their observations when the will was signed.  Again, even this modest level of scrutiny is not available for a holograph will.

The Court noted that a suicide note is the kind of special circumstance that requires close scrutiny. This is especially the case where the circumstances call into question the capacity of the testator.

Normally, upon proof that the Will was duly executed with the requisite formalities, it will generally be presumed that the testator had the necessary knowledge and capacity. However, where suspicious circumstances are present, the presumption is spent and the propounder of the will reassumes the legal burden of proving knowledge and approval. Where the suspicious circumstances relate to mental capacity, the propounder will also reassume the legal burden of establishing testamentary capacity.

The Court held that Michael, as the propounder of the suicide note, had the legal burden of establishing testamentary capacity.

The Court further held that Michael did not meet his evidentiary burden of proving on a balance of probabilities that the suicide note was a holograph Will. In reaching its decision, the Court considered the evidence of multiple affiants of Jody’s substance abuse, including evidence that he was drunk the day leading up to his suicide; the expert report was inconclusive as to incapacity but did not have the benefit of cross-examination evidence regarding substance abuse; the suicide note stated that “I am beyond my control”; the note was sloppy and nearly illegible; and the pure distain for Joanne in the note.

It is clear from the Court’s decision that a suicide note could be admitted to probate as a holograph Will; however, any such note and the surrounding circumstances will be carefully scrutinized by the courts.