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Mental Health - Capacity to Make A Will (Testamentary)

. McGrath v. Joy

In McGrath v. Joy (Ont CA, 2022) the Court of Appeal considered interesting testamentary capacity issues in a suicide situation where alcohol and drugs were involved:
[1] Shortly before committing suicide, a person wrote a suicide note which met the requirements for a holograph will. He had been drinking and using drugs the day before his death. The sole issue for the court below was whether the deceased had testamentary capacity when he wrote the suicide note. The court concluded that he did not.

[2] On this appeal, the court must revisit: (1) how to determine testamentary capacity where there are suspicious circumstances surrounding the preparation of a will, and (2) the principles governing cost orders in estate litigation.

[3] The requirements for a holograph will are set out in s. 6 of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (the “SLRA”):
6 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.

A. The Legal Principles for Determining Testamentary Capacity

[50] The legal principles for determining testamentary capacity are long-standing. They were established by the Supreme Court of Canada in Skinner v. Farquharson (1902), 1902 CanLII 87 (SCC), 32 S.C.R. 58, in reliance on Banks v. Goodfellow, and have been applied ever since. The application judge correctly stated those principles at several places in the Reasons. For example, at para. 49 of the Reasons, relying on para. 14 of Hall v. Bennett Estate, he states that to make a valid will, a testator must have a “sound disposing mind” and to have a sound disposing mind, a testator must:
a. understand the nature and effect of a will;

b. recollect the nature and extent of his or her property;

c. understand the extent of what he or she is giving under the will;

d. remember the people that he or she might be expected to benefit under his or her will; and

e. where applicable, understand the nature of the claims that may be made by persons he or she is excluding under the will.


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Last modified: 20-01-23
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