Legal Blog

Holograph Will – Competency

Joy Estate v. McGrath 2022 Ont CA

A signed will in the testator’s handwriting is a valid holograph will, even if it is also a suicide note, as long as the testator had a sound disposing mind. The testator may have been using alcohol and drugs at the time; however, that medical condition does not preclude a finding of testamentary capacity as long as the testator could discern the elements of a sound disposing mind. In this case, the court held that the testator passed all the tests when writing the will (and then hanging himself): he understood the nature and effect of the will, knew the nature and extent of his property, understood the extent of what he was giving, remembered the people that might be expected to benefit under the will, and understood, if applicable, the nature of claims that might be made by people who were being excluded under the will. As to costs of the action, there is a two-step process: determine whether there are reasonable grounds on which to question capacity or whether difficulties or ambiguities arose that the testator caused. If there are, the estate will pay all the costs; if there are not, the losing litigant will pay the costs.

Written by Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.