Under basic Estates law concepts, a Will is a testamentary instrument. A codicil, in contrast, is essentially an “addendum” to a valid Will. It does not displace the original Will – it just adds to it.
And what about a suicide note? It is a new Will, or a codicil? Or neither?
That was the crux of the question before the Ontario Court of Appeal in McGrath v. Joy. The facts involved a man named Joseph, who had made a valid handwritten Will in 2016. In it, he made certain bequests to his long-time friend and business partner Dexter, including shares he owned in two of the corporations they ran together.
But in 2019 Joseph commit suicide – but not before leaving a signed, two-page suicide note in the pocket of his shorts. It was drafted after a day of drinking alcohol and smoking hash oil. Once again, it was in Joseph’s own handwriting.
The suicide note began with Joseph apologizing for killing himself. Then he accused his wife of driving him to do it. Next, he gave instructions about who was to attend his funeral, and how his ashes were to be spread. And in the final sentences, he wrote that he wanted Dexter to make sure his wife did not “get anything,” and added that “everything” was to go to Michael, and to Michael’s son. Dexter was otherwise not mentioned at all.
Now that Joseph was gone, a dispute arose between Michael and Dexter as to the impact of the suicide note on their entitlements from Joseph’s estate. They applied to the court for its ruling.
Dexter wanted a declaration that the 2016 Will was still intact, and that the suicide note was merely a codicil to it. The suicide note could not be a separate valid Will, he said, since the obviously-despondent Joseph was clearly not in the right frame of mind when he wrote it. Especially after a day of drinking and drugs, Joseph did not have testamentary capacity to make a valid Will just before killing himself the next day.
Alternatively, according to Dexter, if Joseph’s suicide note was ruled to be a valid testamentary document then it should be considered merely a “codicil” (i.e. an add-on) to his 2016 Will, and should not impact Dexter’s inheritance under it.
Michael’s argument in response was simple: He wanted the suicide note to be declared a stand-alone new and valid Will, which revoked the 2016 version. That meant he and his son would get Joseph’s entire Estate.
The matter ended up before the Court of Appeal, which ruled that Joseph did indeed have testamentary capacity and a “sound disposing mind” when he wrote the suicide note. In coming to this conclusion, the court noted that Joseph:
- Understood the nature and effect of a Will,
- Recollected the nature and extent of his property,
- Understood the extent of what he was giving under the Will, and
- Understood the nature of the claims that might be brought by a person excluded from the will.
This meant that Joseph’s suicide note met the requirements for a valid handwritten (holograph) Will. His earlier 2016 Will was revoked by it, and Dexter ended up being cut out. (And Dexter later applied to have the appeal re-opened, but he was unsuccessful).
For the full text of the decisions, see:
McGrath v. Joy, 2022 ONCA 119 (CanLII), <https://canlii.ca/t/jm975>,
McGrath v. Joy, 2023 ONCA 46 (CanLII), <https://canlii.ca/t/jv3jh>
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