Jenna Bever


Joy Estate v McGrath (2022 ONCA 119)

This is a case where the deceased committed suicide and left behind a suicide note. The suicide note listed who the deceased wanted to leave his estate to, specifically his step son.

The deceased had also created a previous written Will in which he left his estate to his friend and spouse.

At law there are two primary kinds of Wills:

1) A traditional written Will. This is the Will you create with the help of a lawyer and to put your wishes to paper. It must follow specific formats, such as having 2 witnesses and be entirely in typing.

2) A holograph Will. This Will is one that must be in the deceased’s handwriting and lists who their assets should be left with (amongst other requirements).

When a deceased leaves behind a note it is possible that a Court will determine the note is a valid holographic Will, but there are also instances in which the note is not deemed to be a Will.

In this case, the step son brought an application to the Court in Ontario to have the suicide note deemed to be a valid holographic Will.

The Respondents (the wife and the friend of the deceased) argued against the step-son’s application, and claimed the deceased did not have the requisite capacity to create a valid holographic Will because he had been drinking and using the drugs the day before he took his life and left the note.

At the original trial the Court found in favour of the Wife and the Friend. However in Canada most jurisdictions have an appeal court. In this case the step-son appealed the decision and the case went to the Ontario Court of Appeal.

At the Court of Appeal the step-son was successful and the Court of Appeal found that there was no evidence to suggest the deceased had a disorder or condition that would support finding he had no mental capacity and further that using alcohol and drugs does not necessarily equate to not having the ability to create a Will, without other factors being at play.

Specifically the Ontario Court of Appeal confirmed that when drafting a Will (whether a formal Will or a holographic Will) the deceased must understand the nature and effect of the Will and understand what property he has and to whom he is giving the property. These conditions can be met even if under the influence of alcohol and/or drugs.

Ultimately the holographic Will was deemed to be valid and the deceased’s last intentions were upheld and the step son received his estate. However the step son was required to go through complicated court applications in order to reach this result. A formal will would likely have prevented needing to go through these complicated steps and ensured the deceased’s wishes were respected from the beginning.