2020 was an unusual year. Not only was there a global pandemic, but by sheer coincidence there was not one, but two estates applications in different provinces to determine whether a suicide note was a valid will. While the suicide note in Ontario was not found to be a valid Will, the one in British Columbia was.
To explain these differing results, it is important to understand not only the different fact scenarios, but also the different applicable legislations.
Ontario’s Case: McGrath v Joy, 2020 ONSC 7454
Tragically, Joseph Philip Joy (“Jody”) committed suicide on July 13, 2019. Shortly before his death, he left a suicide note which was described by the Court as a “profanity laced diatribe aimed at Jody’s spouse, Joanne, written shortly before Jody’s death”.
Jody had executed a will in 2016. The beneficiaries included: Jody’s stepson Michael McGrath (“Michael”), Michael’s son Michael Jr., and Dexter Ramsundarsingh (“Dexter”), who was a long-time friend and shareholder in Jody’s electrical contracting business. Dexter’s father Steven Ramsundarsingh (“Steven”) was named as estate trustee of his estate. Dexter was to receive Jody’s interest in the electrical business. Joanne Joy (“Joanne”), Jody’s wife, was to receive after-tax proceeds of a $600,000 life insurance policy.
The contested suicide-note will would have altered the beneficiaries. The beneficiary designation of the life insurance policy in favour of Joanne was voided and Dexter was cut out completely. Instead, Michael and Michael Jr. would have benefited from the estate substantially. Steven had no role except to direct certain funeral matters.
Michael brought an application seeking a declaration that the suicide note was a valid holograph will. Both Joanne and Dexter, who were named as respondents to the application, opposed the application. In the alternatively, Dexter took the position that the suicide note should be construed as a codicil to the 2016 will.
Mulligan J. of the Ontario Superior Court of Justice held that the suicide note was not a valid holograph will and dismissed the application. Mulligan J.’s reasoning was laid out in para. 32 of the decision:
(1) Pursuant to 6 of Ontario’s Succession Law Reform Act (“SLRA”), and Rules 74.04(1)(d), and 75 of Ontario’s Rules of Civil Procedure, it is possible to create a holograph will as long as the statutory requirements are fulfilled.
(2) The entire document must be handwritten.
(3) Holograph wills do not require witnesses – only the testator is required to sign at the end.
(4) In special circumstances such as suicide, the validity of the disputed will requires close scrutiny. In addition to meeting all statutory requirements, the testator must also be found to have testamentary capacity.
Following the Supreme Court’s finding in Vout v. Hay, where suspicious circumstances exist (such as suicide), the evidentiary burden to establish testamentary capacity lies on the propounders of the will. In this case, Michael was unable to discharge this onus due to a number of factual findings laid out in para. 56:
(1) Jody had a history of substance abuse;
(2) Jody had made plans for the day following his suicide; and
(3) Jody committed suicide after a full day of drinking and drug abuse, which was clear from the sloppy and illegible handwriting.
The Court held that this suggested Jody was not capable of understanding the nature and consequences of his actions when he wrote his suicide note, leading to the Court’s conclusion that it was not a valid will.
B.C’s Case: Gregoire v Cordani, 2020 BCSC 276
In contrast to Ontario’s governing legislation, B.C.’s estate legislation has a substantial compliance provision (s. 58 of its Wills, Estates and Succession Act (“WESA”)). This means that, unlike Ontario which requires strict compliance with the statutory requirements, B.C. courts can step in and validate a will even if all the formal requirements are not met.
Jean-Claude Gregoire (“Jean-Claude”) and Nicola Cordani (“Nicola”) spent several years in a romantic relationship. Jean-Claude represented himself as Nicola’s common law spouse. After Nicola died, Jean-Claude brought an application for a finding that Nicola’s 2018 suicide note was her last will and testament, even though it failed to meet all the legislative requirements (in particular, it was not properly witnessed).
Nicola suffered from a history of depression and anxiety, eventually requiring hospitalization. The year prior to her suicide, her conditions worsened and she cut out her mother and two brothers from her life. However, she remained close to her brother Michael Cordani.
In 2018, Nicola was discovered dead with a suicide note in her vehicle.
Contrary to the Ontario Superior Court’s approach above, the Supreme Court of British Columbia did not place the onus on the propounder, Jean-Claude, to establish that Nicola had testamentary capacity when she wrote the suicide note. Instead, the Court utilized a different legal test to assess whether they should step in to cure the suicide note’s defects:
(1) is the document authentic?
(2) does the document represent the deceased’s testamentary intentions? In other words, does the document represent the deceased’s “deliberate or fixed and final expression of intention” as to disposal of their property on death?
After a weighing of the evidence, Norell J. was satisfied that the suicide note was a valid will:
(1) the handwriting was authentic;
(2) the note was in plain sight near the scene of the suicide, indicating that it was intended to be found; and
(3) on the note read: “this is my will please respect my wishes”.
Substantial Compliance vs. Strict Compliance Legislation
While the different results of these two cases are not only a reflection of different fact patterns, they are also the result of two different legislative and policy approaches. Should the courts be able to step in and “create” wills, potentially altering the wishes of a testator? This was the question underlying both courts when looking at the suicide notes in front of them. The B.C. legislature gave judges the power to cure defective wills. Ontario and Newfoundland are the only two Canadian provinces or territories which have not given the courts this power.
While the courts in B.C. made prudent use of this power in this case, the existence of this type of power raises fundamental questions: apart from obvious cases of defective drafting, how is it possible to truly know what a testator’s “deliberate or fixed and final testamentary intentions” are? How can courts know they have gotten it right?
Ontario’s strict compliance approach has some benefits: it creates fewer and shorter court proceedings because whether the statutory requirements for a valid will have been met tends to be clear and obvious. However, without the ability to step in and cure errors, some people’s clear testamentary instructions will be ignored because of simple drafting errors. Finding the right balance is not easy.
It is commonly understood that a great deal is determined by where one is born. However, this pair of cases is an excellent illustration of the fact that a great deal is also determined by where one dies.
The author expresses gratitude to Gillian Fournie of de VRIES LITIGATION LLP for discussions that have cumulated in the idea for this article.