A Suicide Note as a valid Holograph Will – ONCA decision on Testamentary Capacity and Costs in Estate Litigation
By: Mitchell J. Rattner
The Ontario Court of Appeal (“ONCA”) recently released a decision (McGrath v. Joy, 2022 ONCA 119) which dealt with the issue of testamentary capacity of a person who suffered from alcohol and drug dependency. The decision also dealt with the issue of costs in estate litigation.
Facts
The facts of this case are as follows. The deceased individual wrote a suicide note, which was found to be a valid holograph (handwritten, unwitnessed) will. The day before his death, he was alone, working on his boat, drinking alcohol, and smoking hash oil cigarettes. The deceased’s step-son, who was named as one of the beneficiaries in the suicide note/holograph will, brought an Application to have the note declared a valid holograph will and admitted to probate. The other beneficiary named in the note was the step-son’s son, who was a minor at the time and therefore represented by the Office of the Children’s Lawyer (“OCL”). The OCL supported the Applicant’s position. The Respondents, who opposed the application, were the deceased’s spouse (who was specifically disinherited by the holograph will) and a friend of the deceased (who had been a beneficiary under the previous will, but was not mentioned in the suicide note).
The Applicant submitted the expert evidence of Dr. Mark Sinyor, a psychiatrist at Sunnybrook Hospital, and an expert in the field of suicidality. Dr. Sinyor was unable to say definitively whether the deceased was intoxicated at the time he wrote the suicide note, or whether the potential intoxication may have made him incapable of making a will.
The Application Judge’s Decision
The Application Judge concluded that the deceased lacked testamentary capacity when he wrote the suicide note/holograph will, based on his consumption of drugs and alcohol on the day before his death. The Application Judge also ordered that the Estate would pay a small portion of the costs of the Respondents and the OCL, and that the Applicant would pay the majority of their costs.
The Applicant appealed.
For purposes of the appeal, the parties agreed that the suicide note was a holograph will and also that the suspicious circumstances of the deceased’s death called into question his testamentary capacity. They further agreed that the Applicant/Appellant bore the onus of proving that the deceased had testamentary capacity when he wrote the note.
The Issue of Testamentary Capacity
The ONCA summarized the principles for determining testamentary capacity as follows:
“[50] The legal principles for determining testamentary capacity are long-standing. They were established by the Supreme Court of Canada in Skinner v. Farquharson (1902), 1902 CanLII 87 (SCC), 32 S.C.R. 58, in reliance on Banks v. Goodfellow, and have been applied ever since. The application judge correctly stated those principles at several places in the Reasons. For example, at para. 49 of the Reasons, relying on para. 14 of Hall v. Bennett Estate, he states that to make a valid will, a testator must have a “sound disposing mind” and to have a sound disposing mind, a testator must:
- understand the nature and effect of a will;
- recollect the nature and extent of his or her property;
- understand the extent of what he or she is giving under the will;
- remember the people that he or she might be expected to benefit under his or her will; and
- where applicable, understand the nature of the claims that may be made by persons he or she is excluding under the will.
[…]
[66] The caselaw is clear. To make a valid will, a testator must have a “sound disposing mind”. A testator has a sound disposing mind, if he or she: understands the nature and effect of a will; recollects the nature and extent of his or her property; understands the extent of what he or she was giving under the will; remembers the people that the testator might be expected to benefit under the will; and, understands the nature of the claims that might be brought by persons excluded from the will.”
The ONCA took issue with the Application Judge’s reliance on drug and alcohol abuse as the primary basis for finding that the deceased lacked testamentary capacity. In fact, at paragraph 70, the ONCA wrote that: “It is an error to infer a lack of testamentary capacity based on a person’s use of alcohol and drugs. If a testator suffers from a disorder or condition that may impact on his or her testamentary capacity, that matter should be considered when applying the relevant legal principles for determining testamentary capacity.” The ONCA stated that there was no evidence that the deceased had a disorder or condition that could support a finding of testamentary capacity. Despite reliance on drugs and alcohol, he continued to function at work. He had never been diagnosed/treated for a substance abuse disorder or other mental health challenge.
The ONCA also found that the Applicant Judge placed insufficient weight on the expert evidence of Dr. Sinyor. The ONCA noted that at the time the expert report was prepared, “Dr. Sinyor was the only scientist to have led and conducted a study of a large sample of suicide notes with the explicit purpose of identifying how often, and in what form, holograph will content was present“ (paragraph 79). The ONCA concluded its discussion of Dr. Sinyor’s evidence as follows, at paragraph 81: “Many people today struggle with mental health challenges. Many people also use and abuse alcohol and drugs. Dr. Sinyor’s expert evidence assists in understanding how different capacity issues may arise when people have drugs and/or alcohol in their system. Importantly, 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.”
The ONCA briefly discussed whether the suicide note could be construed as a codicil to the previous will and decided that it was not. First, the wording in section 6 of the Succession Law Reform Act, which provides for the the making of a holograph will uses only the word “will” and not “codicil.” Second, the note was clear in stating that “everything” was to to the two beneficiaries named in the note.
The ONCA concluded that Applicant had discharged the burden of proving that the deceased had capacity, and accordingly, the ONCA held that the suicide note was a valid holograph will.
The Issue of Costs in Estate Litigation
On the subject of costs in estate litigation, the ONCA summarized the law as follows:
“[91] Traditionally in estate litigation, the parties’ costs were paid from the testator’s estate. In McDougald Estate v. Gooderham(2005), 2005 CanLII 21091 (ON CA), 255 D.L.R. (4th) 435 (Ont. C.A.), at paras. 78-79, this court explained the public policy considerations that underlay the traditional approach: the need to give effect to valid wills that reflect the intention of competent testators and the need to ensure that estates are properly administered. Accordingly, if there are reasonable grounds on which to question the execution of a will or the testator’s capacity to make the will, it is in the public interest that such questions be resolved without cost to those questioning the will’s validity. And, where the difficulties or ambiguities that gave rise to the litigation are caused by the testator, it is again appropriate for the testator’s estate to bear the costs of their resolution.
[92] Over time, it became apparent that the courts had to guard against allowing their processes to be used to unnecessarily deplete a testator’s estate and a modern approach emerged. At para. 80 of McDougald Estate, this court summarized the modern approach that courts of first instance are to take in fixing costs in estate litigation:
[C]arefully scrutinize the litigation and, unless the court finds that one or more of the public policy considerations set out above applies, to follow the costs rules that apply in civil litigation. [Emphasis added.]
[93] This approach was reiterated in Sawdon Estate v. Sawdon, 2014 ONCA 101, 119 O.R. (3d) 81, at para. 84, and in Neuberger Estate,at para. 24.
[94] The jurisprudence is clear: at first instance, when deciding costs in estate litigation, the court must begin by carefully scrutinizing the litigation to determine whether one or more of the public policy considerations applies. If so, as a general principle, the parties’ reasonable costs are to be paid from the testator’s estate.
[95] It is worthy of note that this approach is not a balancing of the public policy considerations against the rationale for cost rules that ordinarily apply to civil litigation. Rather, it is a sequential analysis, the first step of which is to determine whether one or more of the public policy considerations apply. If so, generally the parties’ reasonable costs should be payable from the estate. A departure from this general principle requires justification on the part of the court.”
The ONCA noted that the Application Judge ought to have first considered whether any public policy considerations apply, before applying the civil litigation costs rules. In the circumstances, public policy considerations did apply, as the Application was necessary to ensure that the deceased’s estate was properly administered. It was the deceased’s conduct which created uncertainty and which led to the litigation. As such, the ONCA held that the estate should bear the parties’ costs, in the same total amounts as determined by the Application Judge, except for the Applicant/Appellant, who should be entitled to full indemnity costs paid out of the estate. As to the costs of the appeal, as the Appellant was wholly successful, he was entitled to full indemnity costs from the estate. Although the Respondents lost the appeal, in keeping with the estate litigation costs rationale and public policy considerations, the ONCA ordered that the Respondents’ costs, fixed at $10,000 each would be paid from the estate.
Commentary
Aside from containing an excellent summary of the law regarding testamentary capacity, suspicious circumstances, and costs in estate litigation, the facts of this case also stand out. They are quite tragic, and perhaps not unique. Mental health initiatives and awareness campaigns are becoming more common. Bell’s “Let’s Talk Day” is a good example. Putting the result of the appeal aside, the ONCA’s approach to and manner of writing about the issues of substance abuse and mental health reflect a socially aware and sensitive approach by the Court.