Can a Suicide Note be a Will?

May 13, 2022

By Brian Babcock

IF YOU OR A LOVED ONE ARE EXPERIENCING MENTAL HEALTH ISSUES AND MAY BE SUICIDAL, SEEK PROFESSIONAL HELP IMMEDIATELY. HEALTH ISSUES ARE BEYOND OUR SCOPE OF WORK, AND EVEN THE BEST LEGAL HELP IS LESS IMPORTANT THAN YOUR HEALTH.

The short answer is “yes it can”, which is a lawyer’s way of saying “sometimes, maybe”. As with any will, it is a question of formality and capacity.

This issue came to our attention as a result of the Ontario Court of Appeal decision in McGrath v. Joy. The deceased had killed himself, leaving a two-page handwritten note which blamed his wife, and asked that his business partner make sure that all his property be divided between his step-son and step-grandson. He also stated he did not want his wife at his funeral, and left instructions that his ashes be spread in front of his cabin.

He had spent the day before his death drinking and smoking hash oil.

His prior wills were also homemade, most recently a 2016 will which divided his estate between his wife, his business partner, and the step-son and grandson.

The formality issue was straightforward. The Succession Law Reform Act provides that:

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.

Capacity was a tougher issue. The business partner and wife suggested that the deceased was impaired at the time he wrote the note, so lacked capacity.

The coroner did not order toxicology testing, so there was no evidence as to the amount of alcohol or products of hash oil in his system at death. A psychiatrist with particular expertise in the field of suicide was unable to express an expert opinion as to whether the potential intoxication made the deceased incapable at the time he wrote the note.

The Superior Court judge who first heard the case still ruled that he was incapacitated, referring to evidence of:

  • the deceased’s history of substance abuse;
  • the consumption prior to the suicide;
  • a witness who Facetimed with the deceased stating that he appeared to be drunk;
  • the note stating “I am beyond my control…”;
  • the note being “sloppy and nearly illegible”; and
  • the note being a profanity laced diatribe against the wife.

He discounted the psychiatrist’s inconclusive opinion as not reflecting all the evidence – suggesting that if the doctor HAD all the information, the opinion would be that the deceased was incapable.

But capacity is not that simple.

Although the surrounding circumstances are sometimes relevant, the primary focus ought to be on the alleged will itself. That is not what the judge had done.

As the Court of Appeal explains:

  • he had committed the basic error of confusing impairment with incapacity – the two are not always the same;
  • there was no evidence of chronic alcoholism or other mental disorder in spite of the drinking;
  • the deceased had worked in his business up until just before his suicide. He had even called his partner after the drinking started to discuss future work. The partner admitted the call was coherent, made sense and was comprehensive;
  • although the friend on the Facetime call thought the deceased was drunk, he was not incoherent and was making sense;
  • the expert evidence, as the Court of Appeal stated, “confirms that none of suicide, alcoholism, or other substance abuse disorders, together or in combination, are sufficient to infer lack of testamentary capacity”;
  • the judge was wrong to discount that report as fully as he did. He essentially made the very inference that the Court of Appeal says the report confirms is a mistake; and
  • the appearance of and language used in the note were irrelevant. The note was legible. The profanity reflected anger at his wife, which may explain disinheriting her, but does not show lack of capacity.

There is an established five point test to determine whether a deceased had a “sound disposing mind” at the time they prepared the will. The Court of Appeal ruled that although the judge set out the test correctly, he failed to apply it correctly. They went through the test and decided that the deceased was of sound mind, and the suicide note was a valid will.

The five steps in the test are that the deceased 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 people 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 under the will.

The suicide note used language commonly found in wills, and provided instructions to the business partner to carry out the instructions. That satisfies point 1.

The reference to the 2016 will being VOID, and to the cabin, showed awareness of his assets (points 2 and 3). The references to the four individuals named in the 2016 will satisfied points 4 and 5 of the test.

The suicide note in this case was a valid will.

We still recommend having your will professionally prepared, and the estate planning lawyers at Weilers Law are ready to work with your other advisors to prepare a will that reflects a solid estate plan and will withstand challenge. We know and work well with many financial and investment advisors in Thunder Bay and other Northwestern Ontario communities. Our success in those relationships makes us confident that we can work well with your advisors.

If you are a trustee or potential beneficiary affected by any sort of do-it-yourself will, whether typed, handwritten, or even a suicide note, Weilers Law can provide a reliable opinion as to the validity. If it is necessary to go to court to determine the issue, the Weilers Law litigation team works closely with the estate planning team to provide effective advocacy in all types of estate litigation.

IF YOU OR A LOVED ONE ARE EXPERIENCING MENTAL HEALTH ISSUES AND MAY BE SUICIDAL, SEEK PROFESSIONAL HELP IMMEDIATELY. HEALTH ISSUES ARE BEYOND OUR SCOPE OF WORK, AND EVEN THE BEST LEGAL HELP IS LESS IMPORTANT THAN YOUR HEALTH.