Suicide note is valid will, not codicil to past will: Ontario Court of Appeal

In a recent case, the Ontario Court of Appeal refused to withdraw its previous reasons and to re-hear the issue of whether a suicide note was the testator’s final will in 2019, or a codicil to his will in 2016.

The testator made wills in 2014 and in 2016. Under the 2016 will, the moving party would receive the testator’s shares in two corporations.

In July 2019, the testator spent a day drinking alcohol and smoking hash oil cigarettes. The next day, he committed suicide. He left a signed and wholly handwritten two-page note. The note named the responding party and his son as beneficiaries.

The responding party filed an application seeking to declare the suicide note a valid will and to admit it to probate.

The application judge dismissed this application. The judge found that the responding party, as the will’s propounder, failed to meet the evidentiary burden of showing that the testator had testamentary capacity when he wrote the suicide note. The judge based this finding on the testator’s consumption of alcohol and drugs the day before his death.

The judge did accept that the suicide note met the requirements in s. 6 of Ontario’s Succession Law Reform Act, 1990 for a valid holographic will. The judge found it unnecessary to address the moving party’s alternate argument that the suicide note should be considered a codicil to the 2016 will.

Note isn’t codicil

The appellate court allowed the responding party’s appeal. It made the following findings:

• The testator had a sound disposing mind and thus had testamentary capacity when he wrote the suicide note since he 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 a person excluded from the will might bring
• The suicide note was the testator’s valid will
• The moving party provided no legal authority to support his argument that the document found to be a valid will should instead be construed as a codicil
• Giving effect to this argument would lead to maladministration of the estate because the suicide note provided that “everything” the testator owned should go to the responding party and his son

In McGrath v. Joy, 2023 ONCA 46, the Ontario Court of Appeal dismissed the moving party’s motion asking it to re-open the appeal and to re-hear his argument that the suicide note was not a valid will but was instead a codicil to the 2016 will.

The appellate court noted that it already expressly addressed this issue in its previous reasons. The moving party’s disagreement with the appellate court’s decision or his wish to raise further arguments did not amount to a “rare circumstance” where the interests of justice would require the court to withdraw its reasons and to re-hear the matter.

The appellate court’s previous reasons already determined that the suicide note was the testator’s valid will. This meant that the court could no longer characterize the note, which left “everything” to the two named beneficiaries, as a codicil to the 2016 will.