COURT OF APPEAL FOR ONTARIO
DATE: 20220210 DOCKET: C68977
Gillese, Trotter and Nordheimer JJ.A.
In the Estate of Joseph Philip Joy, deceased
BETWEEN
Michael Ronald McGrath Applicant (Appellant)
and
Joanne Joy, Dexter Ramsundarsingh, and Michael McGrath Jr. by his litigation guardian, The Office of the Children’s Lawyer Defendants (Respondents)
Counsel: Peter W. G. Carey and Kavina P. Nagrani, for the appellant Michael Ronald McGrath Judith L. Turner, for the respondent Joanne Joy Orie Niedzviecki, for the respondent Dexter Ramsundarsingh Barry Hayes, for the respondent Michael McGrath Jr.
Heard: November 15, 2021
On appeal from the order of Justice G. M. Mulligan of the Superior Court of Justice, dated December 2, 2020, with reasons reported at 2020 ONSC 7454, and from the costs order dated December 2, 2020, with reasons reported at 2021 ONSC 316.
1Shortly 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.
2On 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.
3The 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.
I. Overview
4Sadly, Joseph Philip Joy (“Mr. Joy” or the “deceased”) died by suicide early on the morning of July 13, 2019. He spent the day before his death working on his boat, drinking alcohol, and smoking hash oil cigarettes. When the police arrived on the scene, they discovered a signed two-page note, wholly in Mr. Joy’s handwriting, in the pocket of his shorts (the “Suicide Note”).
5In the Suicide Note, Mr. Joy began by apologizing for killing himself and said, using profane language, that his wife, Joanne Joy (“Ms. Joy”), “drove me to this” and “I’m beyond my control because of her.” He then asked his business partner, Steve Ramsundarsingh – whom he had named his executor in a previous will made in 2016 (the “2016 Will”) – to make sure that Ms. Joy did not “get anything”. That statement was followed by, “This is my declaration that anything in my will that has her name on it is VOID. Everything goes to my stepson Michael & grandson Michael”. [1]
6On the second page of the Suicide Note, Mr. Joy asked Steve Ramsundarsingh to make sure that Ms. Joy was not at his funeral. He also said, “I want my ashes spread in the pond in front of my cabin”.
7Michael Ronald McGrath is Mr. Joy’s stepson and the appellant in this matter (the “Appellant”). He brought an application to have the Suicide Note declared Mr. Joy’s valid will and admitted to probate (the “Application”). Michael McGrath Jr. (“Michael Jr.”) is the Appellant’s son and the other named beneficiary under the Suicide Note. At the time of the Application, Michael Jr. was 7 years old. The Office of the Children’s Lawyer (the “OCL”) represented Michael Jr. on the Application. It wholly supported the Appellant’s position on the Application that the Suicide Note was Mr. Joy’s valid will and should be admitted to probate.
8The Appellant submitted the expert report of Dr. Mark Sinyor on the Application (the “Report”). Dr. Sinyor, a psychiatrist at Sunnybrook Health Sciences Centre in Toronto, is an expert in the field of suicidality. Dr. Sinyor was unable to make a definitive pronouncement on whether Mr. Joy was intoxicated by alcohol and/or cannabis when he wrote the Suicide Note or whether that potential intoxication might have made him incapable of making a will.
9The Application was opposed by Ms. Joy and Dexter Ramsundarsingh (“Mr. Ramsundarsingh”). Mr. Ramsundarsingh is Steve Ramsundarsingh’s son and a long-time friend of the deceased. I refer to Ms. Joy and Mr. Ramsundarsingh together as the “Respondents”.
10The Respondents were named beneficiaries under the 2016 Will, as were the Appellant and Michael Jr. However, in the Suicide Note, no mention was made of Mr. Ramsundarsingh and, as explained above, Ms. Joy was disinherited.
11There was no dispute that the Suicide Note met the requirements for a valid will contained in s. 6 of the SLRA: the document was wholly in Mr. Joy’s own handwriting and he signed it. However, the Respondents contended that the Appellant had failed to prove that Mr. Joy had testamentary capacity to make a will when he wrote the Suicide Note. Mr. Ramsundarsingh also took the alternative position that, if the Suicide Note were found to be a valid will, it should be construed as a codicil to the 2016 Will.
12Based on Mr. Joy’s consumption of alcohol and drugs the day before his death, the application judge concluded that Mr. Joy lacked testamentary capacity when he wrote the Suicide Note. By order dated December 2, 2020 (the “Order”), he dismissed the Application.
13By further order dated December 2, 2020, the application judge made a blended costs order in which he ordered Mr. Joy’s estate (the “Estate”) to pay a small part of the costs of the Respondents and the OCL, and the Appellant to pay the majority of their costs (the “Costs Order”). [2]
14On this appeal, the Appellant challenges the correctness of both the application judge’s conclusion that Mr. Joy lacked testamentary capacity and the Costs Order. In my view, the Appellant succeeds on both matters.
15Consequently, for the reasons that follow, I would allow the appeal, declare the Suicide Note to be Mr. Joy’s valid will, and admit it to probate. I would also set aside the Costs Order, order the Estate to pay the Appellant’s full indemnity costs both below and in this court, and substitute new costs orders in respect of the Respondents and the OCL.
II. Background
16Mr. Joy was 49 years old when he died. He lived in Barrie, Ontario, with Ms. Joy. However, he had been born in Newfoundland and often went back to visit family and friends. He had a cabin there which he loved. [3] His sister, Anne Marie, lives in Newfoundland. The two were very close and frequently visited back and forth.
17Mr. Joy was an electrician by trade. He and his long-term friend and business partner, Steve Ramsundarsingh, built and jointly owned two electrical businesses: J & S Lighting Services Inc. and Regional Electric and Services Inc. (the “Businesses”). As mentioned above, Steve Ramsundarsingh is Mr. Ramsundarsingh’s father. Mr. Ramsundarsingh is in his thirties and a licenced electrician. He worked for Regional Electric and Services Inc. Mr. Ramsundarsingh and Mr. Joy were very close.
18In 2017, Mr. Joy and Steve Ramsundarsingh reorganized the Businesses and made Mr. Ramsundarsingh the owner of all the common shares in the Businesses. Mr. Joy and Steve Ramsundarsingh retained the preferred shares in the Businesses.
19The Appellant is Mr. Joy’s stepson and only child. Mr. Joy is the only father the Appellant has known. The Appellant’s mother and Mr. Joy were together for 22 years. They started dating when the Appellant was two years old. Their marriage lasted for over 14 years.
20The Appellant is an apprentice electrician in his thirties. He worked in the Businesses but left in June 2011. He and Mr. Joy became distant at that time. However, this changed when the Appellant returned to work for the Businesses as an apprentice electrician in February 2019. By that time, the Appellant had his son, Michael Jr., whom Mr. Joy treated as his grandson. He and Michael Jr. were very close and spent much time together.
21The deceased and Ms. Joy began dating in 2013 and were married in April 2016. Theirs was a troubled marriage and they often fought about finances. Mr. Joy moved out and left Ms. Joy more than once during the marriage. During the separations, Mr. Joy often stayed with Mr. Ramsundarsingh. In March 2019, Mr. Joy moved out of the home he shared with Ms. Joy. However, he moved back in May and the couple worked on mending their relationship.
22While there was considerable evidence that Mr. Joy regularly consumed alcohol and smoked hash oil, he had never been diagnosed, treated, or hospitalized for alcoholism, a substance disorder, or other mental health challenge. He had been prescribed medical-grade cannabis for bodily injuries he had suffered.
23Mr. Joy made three holograph wills, each of which is discussed below. There is no evidence that Mr. Joy ever met with a lawyer to make a will.
The 2014 Will
24In 2014, Mr. Joy handwrote a will and signed it (the “2014 Will”). The 2014 Will was witnessed by Steve Ramsundarsingh and a second person. In the 2014 Will, Mr. Joy made bequests to the Appellant, Michael Jr., [4] Mr. Ramsundarsingh, and Ms. Joy.
The 2016 Will
25In 2016, Mr. Joy made a holograph will, wholly in his handwriting and signed by him. That will was later typed up with some minor wording changes, witnessed by Steve Ramsundarsingh and his wife, and signed by Mr. Joy. It is the typed version I refer to in these reasons as the 2016 Will.
26In the 2016 Will, Mr. Joy made bequests to the same four people: the Appellant, Michael Jr., Mr. Ramsundarsingh, and Ms. Joy. He gave:
i. his cabin in Newfoundland to the Appellant and Michael Jr.; ii. a specified garage to the Appellant and Michael Jr.; iii. a specified car to Michael Jr.; iv. a specified boat, skidoo trailer, and skidoo to the Appellant; v. his “50% shares” of the Businesses and a specified unit in Brampton to Mr. Ramsundarsingh; vi. from the proceeds of his $500,000 insurance policy: $5,000 a year for 10 years to maintain the Newfoundland cabin; $300,000 to be held in trust for Michael Jr. until he turned 27; and, $150,000 to the Appellant; and, vii. the proceeds of his $600,000 insurance policy to Ms. Joy, after taxes were paid.
27The 2016 Will concluded by Mr. Joy naming Steve Ramsundarsingh “to carry out my request”.
The 2019 Holograph Will
28As all parties to the Application acknowledged, the Suicide Note meets the requirements for a valid holograph will. Because I set out the main terms of the Suicide Note above, I will not repeat them here. Instead, I will describe the circumstances surrounding its creation.
29Mr. Joy was not working the day before he died. He spent that day cleaning his boat in preparation to go boating the following day. Mr. Joy had invited the Appellant and Michael Jr. to join him for the weekend but they were unable to. Ms. Joy spent the day with Mr. Joy. She said that Mr. Joy drank beer and smoked hash cigarettes throughout the day but, after eating dinner, he switched to vodka. She, too, was drinking alcohol throughout the day.
30Mr. Ramsundarsingh testified that he spoke with Mr. Joy at about 6:30 p.m. that day and Mr. Joy said he was “switching to liquor”. He testified that Mr. Joy was upset about a job contract he had lost earlier that day and he thought Mr. Joy was drunk.
31At about 11 p.m. that evening, Mr. Joy, together with Ms. Joy’s son Rian, was having a FaceTime call with his friend, Arlene. Arlene testified that Mr. Joy sounded drunk. She did not suggest that Mr. Joy was incoherent or not making sense. While she and Mr. Joy were discussing his upcoming trip to Newfoundland, he abruptly left the call. Ms. Joy said that she had stuck her head into the video frame and “photo bombed” the call, which appeared to upset Mr. Joy who went “into a rage”, left the call, and went upstairs to bed. Arlene said that Mr. Joy abruptly left the call and she could hear a door slam.
32When Ms. Joy went to bed later that evening, Mr. Joy was already in bed asleep. She got into bed with him. When she awoke around 5 a.m., Mr. Joy was not in the bed. She found his body hanging in the hallway; he had taken his life.
33The police were called and attended at the scene. No toxicology report was ordered. The coroner ruled that the death was by suicide.
III. The Decisions Under Appeal
The Application
34In his decision (the “Reasons”), the application judge noted that there was no dispute that the Suicide Note met the requirements in s. 6 of the SLRA. Thus, the only issue on the Application was whether Mr. Joy had testamentary capacity to make a will when he wrote the Suicide Note. He observed that holograph wills have long been accepted as a form of testamentary disposition and can be admitted to probate, provided capacity is not an issue. However, a suicide note is a special circumstance that requires close scrutiny. As the propounder of the Suicide Note, the Appellant bore the burden of proving testamentary capacity.
35The application judge set out caselaw dealing with the evidentiary burden when suspicious circumstances (including suicide) exist and how testamentary capacity is determined. On the matter of testamentary capacity, he referred to Banks v. Goodfellow (1870), L.R. 5 Q.B. 549 (U.K. Queen’s Bench Div.). He also quoted para. 14 of Hall v. Bennett Estate (2003), 64 O.R. (3d) 191 (C.A.), in which Charron J.A., speaking on behalf of this court, gave the following summary of the law on testamentary capacity. A testator must have a “sound disposing mind” to make a valid will. To have a sound disposing mind, the testator must: (1) understand the nature and effect of a will; (2) recollect the nature and extent of his or her property; (3) understand the extent of what he or she is giving under the will; (4) remember the persons that he or she might be expected to benefit under his or her will; and, (5) where applicable, understand the nature of the claims that may be made by persons he or she is excluding from the will.
36After setting out the parties’ positions, the application judge stated his conclusion that the Appellant had not met his evidentiary burden of establishing Mr. Joy’s testamentary capacity. He said the following points assisted him in reaching that conclusion:
- Steve Ramsundarsingh thought Mr. Joy was subject to substance abuse; Mr. Ramsundarsingh thought Mr. Joy was drunk when he spoke with him at 6:30 p.m. the day before he wrote the Suicide Note; and, on the FaceTime call Mr. Joy had with Arlene at around 11 p.m. the evening before he died, Arlene thought Mr. Joy was drunk;
- Ms. Joy described a pattern of drinking and drug consumption by Mr. Joy all day and evening the day before he wrote the Suicide Note;
- Dr. Sinyor was inconclusive as to Mr. Joy’s incapacity and he did not have the benefit of cross-examination evidence about Mr. Joy’s history of drug and alcohol abuse and actual consumption the day before he committed suicide;
- Mr. Joy wrote in the Suicide Note that “I am beyond my control … because of [Ms. Joy]”;
- the handwriting on the suicide note “was sloppy and nearly illegible”; Mr. Joy was depressed according to his sister; excessive use of alcohol and hash oil cigarettes was a part of Mr. Joy’s daily life, according to those who knew him best; and
- the Suicide Note was a “profanity laced diatribe” against his spouse, Ms. Joy.
37Having concluded that the Suicide Note was not a valid will due to incapacity on Mr. Joy’s part, the application judge found it unnecessary to consider Mr. Ramsundarsingh’s alternative submission that the Suicide Note should be considered a codicil to the 2016 Will.
The Costs Order
38The application judge made a blended costs order. He ordered costs payable from the Estate, as follows:
i. $9,002.73 to the OCL; ii. $4,930.04 to Mr. Ramsundarsingh; and iii. $10,762.93 to Ms. Joy.
39He ordered the Appellant to pay costs as follows:
i. $17,475.87 to the OCL; ii. $20,764.46 to Mr. Ramsundarsingh; and iii. $20,892.74 to Ms. Joy.
40The application judge referred to the cost principles applicable in estate cases as articulated in Zimmerman v. Fenwick, 2010 ONSC 3855, 57 E.T.R. (3d) 241, at para. 4 and Neuberger Estate v. York, 2016 ONCA 303, 131 O.R. (3d) 143 at paras. 24-25. He said that the Appellant had “acted unreasonably” in attempting to have the Suicide Note admitted as Mr. Joy’s will because he was “pursuing his self-interest in an attempt to oust the legacies to [Ms. Joy] and [Mr. Ramsundarsingh] in [the 2016 Will], and to further the legacies to himself and his son.”
41The application judge said that the Estate bore “some burden” for Mr. Joy having prepared the Suicide Note but the Appellant “acting solely as beneficiary must face costs consequences as the unsuccessful party”.
IV. The Issues
42The Appellant raises two issues on this appeal. Did the application judge err in:
i. concluding that, when Mr. Joy wrote the Suicide Note, he did not have the capacity to make a will; and ii. awarding costs against him personally?
43If this court finds that the Suicide Note is a valid will, it is necessary to address Mr. Ramsundarsingh’s contention that the Suicide Note is “more correctly characterized” as a codicil to the 2016 Will.
44Before addressing these issues, the matter of the standard of review must be determined.
V. The Standard of Review
45The Appellant did not address the standard of review. Both of the Respondents submitted that this court owes a high degree of deference to the application judge’s conclusion that Mr. Joy lacked testamentary capacity when he wrote the Suicide Note. Mr. Ramsundarsingh contends that testamentary capacity is a question of fact and, thus, the palpable and overriding error standard of review applies to the application judge’s capacity determination. Ms. Joy noted that the standard of review on questions of law is correctness and that findings of fact are not to be interfered with absent palpable and overriding error. The OCL adopted the submissions of Ms. Joy.
46In my view, no deference is owed to the application judge’s conclusion that the Appellant had not met his burden of establishing that Mr. Joy had testamentary capacity when he wrote the Suicide Note. While the application judge set out the correct legal principles for making that determination, he made no attempt to apply them. Instead, after discussing the legal principles, the application judge simply stated his conclusion and listed a number of points he said assisted him in reaching it. None of those points relate to, or address, the governing legal principles. Rather, they are primarily directed at Mr. Joy’s use of drugs and alcohol generally and on the day before he wrote the Suicide Note.
47A failure to apply the relevant legal principles in determining an issue is an error in principle warranting this court’s intervention: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 27. Moreover, because the application judge did not apply the relevant legal principles, he made none of the findings of fact called for by their application. Consequently, there are no findings of fact which attract deference on the palpable and overriding standard.
VI. Mr. Joy Had Testamentary Capacity
48On the Application, the parties acknowledged that the Suicide Note met the formal requirements of a holograph will. In reliance on Vout v. Hay, [1995] 2 S.C.R. 876, at paras. 25-27, they also agreed that the suspicious circumstances surrounding the Suicide Note called into question Mr. Joy’s testamentary capacity. They further agreed that the Appellant, as the proponent of the Suicide Note, bore the burden of proving, on a balance of probabilities, that Mr. Joy had testamentary capacity when he wrote the Suicide Note.
49Thus, as the application judge observed, there was but a single issue to be decided on the Application: did Mr. Joy have testamentary capacity when he wrote the Suicide Note? Despite setting out and discussing the relevant legal principles for deciding that issue, the application judge failed to apply those principles and erroneously concluded that Mr. Joy lacked testamentary capacity when he wrote the Suicide Note.
A. The Legal Principles for Determining Testamentary Capacity
50The legal principles for determining testamentary capacity are long-standing. They were established by the Supreme Court of Canada in Skinner v. Farquharson (1902), 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.
B. Application of the Legal Principles
51Because the application judge failed to apply these legal principles to the facts of this case, this court must perform that function. When that is done, in my view, it is clear that Mr. Joy had testamentary capacity when he wrote the Suicide Note.
a. Mr. Joy understood the nature and effect of a will
52There can be no doubt that, in general, Mr. Joy understood the nature and effect of a will. On the record, he had never sought legal assistance in making a will. Nonetheless, he prepared the 2014 Will, the 2016 Will, and the Suicide Note, the last of which meets the formal requirements for a valid will, being wholly in his own handwriting and bearing his signature. Thus, this element of the test requires a consideration of whether Mr. Joy understood the nature and effect of a will when he wrote the Suicide Note. In my view, there can be no doubt that he did.
53On the face of the Suicide Note, Mr. Joy clearly thought he was writing his will. He implored Steve Ramsundarsingh – the person whom he had named as executor under his 2016 Will – to carry out his last wishes. He gave instructions about who was to attend his funeral and how his ashes were to be spread. And he used language commonly found in wills. He made his “declaration” that anything he left to Ms. Joy in a prior will was “VOID”. He then disposed of his assets stating that “Everything goes to my stepson Michael & grandson Michael”.
b. Mr. Joy recollected the nature and extent of his property
54It is important to consider this element informed by an understanding of Mr. Joy’s financial position at the time of death. At that time, and for some period before it, Mr. Joy was in financial difficulties. He had few assets and, as is apparent from the claims by debtors after his death, he had substantial indebtedness. Indeed, on Ms. Joy’s evidence, the conflict between her and Mr. Joy was often related to Mr. Joy’s unfortunate financial situation.
55The Suicide Note shows that Mr. Joy was aware of one of his few significant assets, namely, a $600,000 insurance policy. In his 2016 Will, Mr. Joy bequeathed the after-tax proceeds of that policy to Ms. Joy. In the Suicide Note, he states that anything he gave to Ms. Joy in that will was “VOID”. He had to have recollected that asset when he wrote the Suicide Note in order for him to declare that his previous disposition of it was void.
56Mr. Joy also recalled his beloved cabin in Newfoundland, asking in the Suicide Note that his ashes be spread in front of it.
57However, Mr. Joy does not expressly address his interest in the Businesses in the Suicide Note. In my view, that omission does not necessarily indicate that Mr. Joy failed to recollect this part of his property. I say this for two reasons. First, it will be recalled that, in his 2016 Will, Mr. Joy bequeathed “my 50% shares” of the Businesses to Mr. Ramsundarsingh. After making the 2016 Will, Mr. Joy and Steve Ramsundarsingh re-organized the Businesses and gave Mr. Ramsundarsingh the common shares in them. What Mr. Joy meant by his “50% shares” in the Businesses is unclear. It may be that Mr. Joy believed that he had given Mr. Ramsundarsingh his 50% interest in the Businesses through his gift of the common shares to Mr. Ramsundarsingh. Second, and more importantly, in the Suicide Note, Mr. Joy disposed of all his assets when he stated, “Everything goes to my stepson Michael & grandson Michael”. This wording shows a clear intention on the part of Mr. Joy to bequeath all his property, no matter the nature and extent of it, to the Appellant and Michael Jr.
58Accordingly, in my view, Mr. Joy recollected the nature and extent of his property when he wrote the Suicide Note.
c. Mr. Joy understood the extent of what he was giving under the will
59I addressed this element as part of (b) above.
d. Mr. Joy remembered most of the people that might be expected to benefit under his will
60In the Suicide Note, Mr. Joy left “everything” to his stepson and grandson. Both are people who might be expected to benefit under Mr. Joy’s will and both were named beneficiaries in Mr. Joy’s prior wills (i.e., the 2014 Will and the 2016 Will).
61Given their relationships with Mr. Joy, Ms. Joy and Mr. Ramsundarsingh are people that also might be expected to benefit under Mr. Joy’s will. In this regard, I note that Mr. Joy made bequests to each of them in his 2014 and 2016 Wills (as well as to the Appellant and Michael Jr.). However, the absence of a bequest to Ms. Joy in the Suicide Note does not mean that Mr. Joy failed to remember her. In fact, Mr. Joy did expressly remember her in the Suicide Note but chose to disinherit her. Although expressed in profane terms in the Suicide Note, there can be no mistaking his intention that Ms. Joy receive nothing from his Estate.
62Mr. Ramsundarsingh stands in a different position than Ms. Joy on this element of the test: there is no mention of him in the Suicide Note. Does this indicate that Mr. Joy failed to remember Mr. Ramsundarsingh, a person who might be expected to benefit under his will? Not necessarily.
63As previously noted, it is not clear what Mr. Joy meant in the 2016 Will when he bequeathed his “50% shares” of the Businesses to Mr. Ramsundarsingh. Because Mr. Joy and Steve Ramsundarsingh made a gift of all the common shares in the Businesses to Mr. Ramsundarsingh after he made the 2016 Will, at the time of writing the Suicide Note, Mr. Joy may have believed he had already fulfilled that bequest.
64In the Suicide Note, Mr. Joy remembered three of the four people who might be expected to benefit under his will and there is a reasonable explanation for why Mr. Joy did not refer to the fourth. In my view, this element of the test is largely met.
e. Mr. Joy understood the nature of the claims Ms. Joy might make
65Because Ms. Joy was married to Mr. Joy at the time of his death, she might have a claim against his Estate. However, Mr. Joy had no reason to be concerned about such a claim. Ms. Joy had purchased the matrimonial home in which the couple resided and made the mortgage payments on it. Ms. Joy was the more successful financially of the two. There is nothing to suggest that Mr. Joy did not understand that. Consequently, in my view, this element of the test is also satisfied.
C. Was Mr. Joy of “sound disposing mind”?
66The caselaw is clear. To make a valid will, a testator must have a “sound disposing mind”. A testator has a sound disposing mind, if he or she: understands the nature and effect of a will; recollects the nature and extent of his or her property; understands the extent of what he or she was giving under the will; remembers the people that the testator might be expected to benefit under the will; and, understands the nature of the claims that might be brought by persons excluded from the will.
67As I have explained, instead of applying this test to determine whether Mr. Joy had testamentary capacity at the time he wrote the Suicide Note, the application judge decided that matter largely on the basis of Mr. Joy’s use of drugs and alcohol, in general and on the day before he died. The application judge erred in principle by failing to apply the relevant legal principles. He also erred in the points he relied on for his conclusion that the Appellant had failed to discharge his burden of proving Mr. Joy’s testamentary capacity.
68In my summary of the Reasons, above, I set out the points that the application judge relied on for his conclusion. Those points can be grouped into the three following categories:
a. Mr. Joy’s regular use of drugs and alcohol, and the amount he consumed of both substances the day before he died; b. Dr. Sinyor’s evidence was inconclusive on Mr. Joy’s incapacity and he did not have the benefit of the cross-examination evidence about Mr. Joy’s history of substance abuse and actual consumption on the day before he committed suicide; and c. The Suicide Note was sloppily written, laced with profanities directed at Ms. Joy, and contained a statement in it which said that he was “beyond my control” because of Ms. Joy.
69I will deal with each group in turn.
a. Mr. Joy’s Substance Use
70It is an error to infer a lack of testamentary capacity based on a person’s use of alcohol and drugs. If a testator suffers from a disorder or condition that may impact on his or her testamentary capacity, that matter should be considered when applying the relevant legal principles for determining testamentary capacity. This can be seen in Banks, the English case which served as the foundation for the Canadian law on testamentary capacity.
71In Banks, the testator suffered from paranoid delusions. He had been institutionalized for them but was discharged before he made his will. When deciding whether he had testamentary capacity, the court said, at p. 565, that it was essential that the testator should understand the nature of the act and its effect, the extent of the property of which he was disposing, and the claims to which he ought to give effect. In respect of the last element, the court said that “no disorder of the mind shall poison his affections … or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property”. That is, the court applied the elements for determining testamentary capacity, with due consideration of the testator’s medical condition. The court concluded that the testator’s medical condition did not preclude a finding of testamentary capacity because the testator could “discern” and “judge” the elements comprising the legal test: at p. 567.
72Similarly, in cases where testamentary capacity is questioned due to a testator’s alcoholism or significant alcohol use, capacity is determined by the application of the relevant legal principles. This can be seen in Dujardin v. Dujardin, 2018 ONCA 597, 423 D.L.R. (4th) 731.
73In Dujardin, the testator’s wife challenged his wills on the basis that he suffered from chronic alcoholism and therefore lacked testamentary capacity. The trial judge applied the relevant legal principles, found that the testator had testamentary capacity, and admitted the wills to probate. Trotter J. A., writing for this court, upheld the trial decision.
74Neither level of court in Dujardin ignored the evidence surrounding the testator’s alcohol use. On a typical workday, the testator had a few drinks after work and then drank alcohol at home until he fell asleep. He purchased around 40 ounces of liquor each day. Nor did the courts ignore medical evidence relating to his alcohol use. After hospitalization for a heart attack, the testator had been released with a discharge summary that referred to the possibility of “organic brain syndrome secondary to alcohol abuse.” This evidence, however, did not resolve the question of capacity at the time the testator made his wills. A determination of that matter was made by applying the relevant legal principles. When the elements making up the legal test for testamentary capacity were applied, the trial judge found the testator had testamentary capacity. Trotter J.A., for this court, soundly upheld that decision and the trial judge’s reasons for it.
75It is noteworthy that neither level of court in Dujardin began from the premise that a pattern of very heavy drinking, on a daily basis, suggested testamentary incapacity. Instead, Trotter J.A. approved of the trial judge’s approach, which was to decide testamentary capacity based on a consideration of the evidence relevant to each element of the test – including the evidence of the testator’s alcohol abuse and possible organic brain damage.
76In the present case, there is no evidence that Mr. Joy had a disorder or condition that could support a finding of lack of testamentary capacity. He had never been diagnosed, treated, or hospitalized for alcoholism, a substance disorder, or other mental health challenge.
77Further, despite apparently daily and increasing use of alcohol and drugs, Mr. Joy continued to function at work. Mr. Joy’s consumption of drugs and alcohol the day before he died does not detract from a finding of testamentary capacity made on the proper application of the relevant legal principles.
78Although Ms. Joy, Mr. Ramsundarsingh, and Arlene all testified that Mr. Joy was drunk the day before he died, none said that he presented as irrational, delusional, incoherent, or abnormal. Mr. Ramsundarsingh said that in his 10-15 minute telephone call with Mr. Joy at around 6:30 p.m. the night before Mr. Joy died, he and Mr. Joy spoke about a job they had been pricing for weeks. Mr. Joy told Mr. Ramsundarsingh that they did not get the job and he was not happy about that. They also discussed a trip up north to look for work. While Mr. Ramsundarsingh said Mr. Joy sounded bothered by not getting the job, he also confirmed that Mr. Joy was coherent, making sense, comprehensive, and responsive during the call. And, in the FaceTime call that Arlene had with Mr. Joy later that evening at around 11 p.m., Arlene said he was drunk because he was holding a drink and acting silly, but she did not say he was incoherent or not making sense.
b. Dr. Sinyor’s Evidence
79Unlike the application judge, I am not dismissive of Dr. Sinyor’s evidence. He is a psychiatrist with expertise in the field of suicidality. To the best of his knowledge, at the time he prepared the Report, Dr. Sinyor was the only scientist to have led and conducted a study of a large sample of suicide notes with the explicit purpose of identifying how often, and in what form, holograph will content was present.
80It is unsurprising that Dr. Sinyor was unable to provide a definitive opinion on whether Mr. Joy was intoxicated when he wrote the Suicide Note and, if he was, whether he was so intoxicated that the Suicide Note was “the product of a transient, impaired state of mind produced by that intoxication which did not reflect his true beliefs and wishes.” There was no toxicology screen performed on Mr. Joy’s body and there was no clinical evidence of incapacity. Importantly, however, while the Report was prepared for the Application and, consequently, Dr. Sinyor did not have the benefit of the cross-examination evidence when he wrote it, he had been made fully aware of Mr. Joy’s alcohol and substance use before he wrote the Report.
81Many people today struggle with mental health challenges. Many people also use and abuse alcohol and drugs. Dr. Sinyor’s expert evidence assists in understanding how different capacity issues may arise when people have drugs and/or alcohol in their system. Importantly, the Report confirms that none of suicide, alcoholism, or other substance abuse disorders, together or in combination, are sufficient to infer lack of testamentary capacity.
c. The Appearance of and Language in the Suicide Note
82Respectfully, given the governing legal principles, I fail to see the relevance of the following points that the application judge relied on for his conclusion: Mr. Joy’s handwriting in the Suicide Note was sloppy, which he said made it almost illegible; the “profanity laced diatribe against” Ms. Joy in the Suicide Note; and, Mr. Joy’s statement in that note that he was “beyond my control” because of Ms. Joy.
83Absent an acceptable explanation for how these matters are relevant to one or more of the elements of the test for a sound disposing mind, they cannot properly be used to decide the issue of testamentary capacity. The record shows that Mr. Joy’s handwriting was often sloppy. The police could read the Suicide Note and so could I, which suggests it was not illegible. Mr. Joy often used profanities in his speech, texts, and other written communications. The profanities he directed at Ms. Joy indicate that Mr. Joy was angry and upset with her – so, too, is his statement that she had caused him to lose control and take his life. But, these matters are not indicators that Mr. Joy lacked testamentary capacity.
d. Conclusion on a Sound Disposing Mind
84Mr. Joy had testamentary capacity because he had a “sound disposing mind” when he wrote the Suicide Note. He had a sound disposing mind because 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; remembered the people that might be expected to benefit under his will; and, understood the nature of the claims that might be brought by Ms. Joy, a person excluded from the will.
85The burden of proof was on the Appellant, as the propounder of the Suicide Note, to show Mr. Joy had testamentary capacity when he wrote it. In my view, he discharged that burden.
VII. The Suicide Note is Not a Codicil to the 2016 Will
86Because I have determined that the Suicide Note is Mr. Joy’s valid will, I must address Mr. Ramsundarsingh’s alternative submission that the Suicide Note is “more correctly characterized” as a codicil to the 2016 Will. Counsel for Mr. Ramsundarsingh candidly acknowledged that he has no legal authority to support this submission. On this submission, Mr. Joy’s “50% shares in” the Businesses would pass to Mr. Ramsundarsingh by virtue of the 2016 Will.
87I reject this submission for two reasons.
88First, it flies in the face of the wording of s. 6 of the SLRA. Section 6 provides that a testator “may make a valid will wholly by his or her handwriting and signature” (emphasis added). Although a will and a codicil are both testamentary documents, they are not the same thing. Section 6 is unambiguous: it empowers a testator to make a valid will. Having found that Mr. Joy had the requisite testamentary capacity, because the Suicide Note meets the s. 6 requirements, it is Mr. Joy’s valid will. It is not a codicil.
89Second, to accede to this submission would result in the maladministration of Mr. Joy’s valid will (i.e., the Suicide Note). One term of the Suicide Note is that “everything” is to go to the Appellant and Michael Jr. To give effect to any bequest made in a prior will would be contrary to that term and, therefore, an act of maladministration. Clearly, this court cannot countenance an outcome that would lead to the maladministration of Mr. Joy’s valid will.
VIII. Costs Were Wrongly Decided Below
90The application judge referred to the governing principles on costs orders in estate litigation as set out in Neuberger Estate. However, he failed to follow those principles with the result that the Costs Order is plainly wrong and must be set aside: Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27.
91Traditionally in estate litigation, the parties’ costs were paid from the testator’s estate. In McDougald Estate v. Gooderham (2005), 255 D.L.R. (4th) 435 (Ont. C.A.), at paras. 78-79, this court explained the public policy considerations that underlay the traditional approach: the need to give effect to valid wills that reflect the intention of competent testators and the need to ensure that estates are properly administered. Accordingly, if there are reasonable grounds on which to question the execution of a will or the testator’s capacity to make the will, it is in the public interest that such questions be resolved without cost to those questioning the will’s validity. And, where the difficulties or ambiguities that gave rise to the litigation are caused by the testator, it is again appropriate for the testator’s estate to bear the costs of their resolution.
92Over time, it became apparent that the courts had to guard against allowing their processes to be used to unnecessarily deplete a testator’s estate and a modern approach emerged. At para. 80 of McDougald Estate, this court summarized the modern approach that courts of first instance are to take in fixing costs in estate litigation:
[C]arefully scrutinize the litigation and, unless the court finds that one or more of the public policy considerations set out above applies, to follow the costs rules that apply in civil litigation. [Emphasis added.]
93This approach was reiterated in Sawdon Estate v. Sawdon, 2014 ONCA 101, 119 O.R. (3d) 81, at para. 84, and in Neuberger Estate, at para. 24.
94The jurisprudence is clear: at first instance, when deciding costs in estate litigation, the court must begin by carefully scrutinizing the litigation to determine whether one or more of the public policy considerations applies. If so, as a general principle, the parties’ reasonable costs are to be paid from the testator’s estate.
95It is worthy of note that this approach is not a balancing of the public policy considerations against the rationale for cost rules that ordinarily apply to civil litigation. Rather, it is a sequential analysis, the first step of which is to determine whether one or more of the public policy considerations apply. If so, generally the parties’ reasonable costs should be payable from the estate. A departure from this general principle requires justification on the part of the court.
96The application judge failed to take the necessary first step. Instead of determining whether one or more of the public policy considerations underlay the Application, he began from the premise that the civil litigation costs regime operated. Consequently, he ordered the Appellant – as the losing party – to pay the bulk of the other parties’ costs.
97Had the Application Judge taken that first step, he would have found that the public policy considerations applied and the Application was necessary to ensure that Mr. Joy’s estate was properly administered. Mr. Joy wrote the Suicide Note in suspicious circumstances. Those circumstances created reasonable grounds on which to question Mr. Joy’s testamentary capacity at the time he wrote the Suicide Note. Moreover, it was Mr. Joy’s conduct that led to the litigation – because of the circumstances in which he wrote the Suicide Note, it was unclear whether his Estate should be administered according to the Suicide Note or his 2016 Will.
98Accordingly, the general principle governing costs awards in estate litigation applied and the Estate should bear the parties’ reasonable costs of the Application. I see no justification for departing from the general principle in this case.
99To the extent that the application judge’s reasons can be read as a possible explanation for departing from the general principle, in my view, he erred. He said that the Appellant had acted unreasonably in bringing the Application and was “pursuing his self-interest in an attempt to oust the legacies to [the Respondents]”.
100The Appellant did not act unreasonably in bringing the Application. Because of the suspicious circumstances surrounding the making of the Suicide Note, Mr. Joy’s testamentary capacity was called into question. This meant that it was unclear whether the Estate should be administered in accordance with its terms or those of the 2016 Will. While generally the executor should take the necessary steps to ensure that the estate is properly administered, Steve Ramsundarsingh renounced his right to administer Mr. Joy’s estate, clearly indicating that he would not bring the Application. The Appellant brought the Application to ensure that Mr. Joy’s estate was distributed in accordance with his true testamentary wishes, whether that was found to be as expressed in the Suicide Note or the 2016 Will. In these circumstances, it cannot be said that the Appellant acted unreasonably in bringing the Application.
101Nor was the application judge correct in saying that, in bringing the Application, the Appellant was pursuing his self-interest. Apart entirely from the public policy considerations which, as I explain above, required the bringing of the Application, the Appellant’s position on the application was also of benefit to his minor son, Michael Jr., a position which the OCL fully supported.
102I also query the correctness of the Costs Order in respect of the OCL. Because the application judge gave no reasons for that matter, it is not clear why he made it or why he treated the OCL differently from the Appellant on the matter of costs. The OCL wholly supported the Appellant on the Application. Therefore, on the application judge’s reasoning, both the OCL and the Appellant were the “losing” parties. There is no apparent reason for their divergent treatment by the application judge on the matter of costs. However, as I have concluded that the OCL – like the other parties – is entitled to its costs of the Application, payable from the Estate, I need not resolve this matter.
103On this appeal, no party raised an issue in respect to the quantum of costs awarded to the OCL and the Respondents. Thus, I would use the amounts as determined by the application judge but make them payable from the Estate. Having reviewed the Appellant’s bill of costs (as well as those of the other parties), I am satisfied that the steps taken were warranted and the amounts claimed are reasonable. Accordingly, in my view, the Estate should pay the Appellant’s costs of the Application, on a full indemnity basis.
104I turn now to the question of costs of this appeal. At paras. 86-91 of McDougald Estate, after considering the limited jurisprudence on the principles that govern costs awards in estate litigation at the appellate level, this court concluded that costs are normally ordered against an unsuccessful appellant. Further, the same rules that govern costs in civil litigation at the appeal level apply to unsuccessful appellants in estate litigation: absent exceptional circumstances, the unsuccessful appellant is not entitled to costs of the appeal and will be ordered to pay the respondent(s) costs on a partial indemnity basis: McDougald Estate, at paras. 77, 91. However, where an appellant in estate litigation is successful, the appellant’s costs are generally payable from the estate on a full indemnity basis: McDougald Estate, at paras. 87-88.
105Accordingly, because the Appellant is the wholly successful party, in my view, he is entitled to full indemnity costs from the Estate, provided those costs are reasonable and warranted. I note that a blended costs award is available where an appellant succeeds in an estate matter. The rationale for this can be found at paras. 93-107 of Sawdon Estate. Although the Respondents were unsuccessful on appeal, I do not see this as a situation in which they should be required to pay the Appellant’s costs on a partial indemnity basis. Their participation at first instance was necessary to ensure that the questions surrounding Mr. Joy’s testamentary capacity were fully explored. Their views prevailed at first instance. The public policy considerations that applied below continue to operate at this level of court.
106Consequently, in my view, the Respondents are entitled to their reasonable costs of the appeal from the Estate. Because it was Mr. Joy’s conduct that created the need for this litigation, in my view, it would be unfair to penalize the Respondents in costs below or on appeal. At the oral hearing of the appeal, the Respondents each sought $10,000 in costs. I would order those costs and make them payable from the Estate.
107I would make no order of costs of the appeal in favour of the OCL for two reasons. First, the OCL gave no reason for changing its position on appeal from that which it took on the Application. While the OCL supported the Appellant on the Application, on appeal it supported Ms. Joy in opposition to the Appellant. Second, the OCL had very limited involvement on the appeal. It adopted Ms. Joy’s submissions in its factum, relied on the documentation that she filed, and made no oral submissions.
IX. Disposition
108For these reasons, I would allow the appeal and declare that the Suicide Note, as Mr. Joy’s valid will, be admitted to probate.
109Further, I would set aside the Costs Order and make the following costs orders of the Application. The sums are all-inclusive and to be paid from the Estate:
a. to the Appellant, fixed at $83,960.63; b. to the OCL, fixed at $26,478.56; c. to Ms. Joy, fixed at $31,655.67; and d. to Mr. Ramsundarsingh, fixed at $25,694.50.
110I would order costs of the appeal as follows. Again, the sums are all-inclusive and to be paid from the Estate:
a. to the Appellant, fixed at $15,000; b. to Ms. Joy, fixed at $10,000; and, c. to Mr. Ramsundarsingh, fixed at $10,000.
111For the reasons given, I would make no order of costs of the appeal to the OCL.
Released: February 10, 2022 “E.E.G.” “E.E. Gillese J.A.” “I agree. Gary Tratter J.A.” “I agree. I.V.B. Nordheimer J.A.”
[1] The word “void” is capitalized in the Suicide Note. [2] Although the Costs Order is dated December 2, 2020, the costs endorsement is dated January 13, 2021, and it was on that day that the Costs Order was issued and entered. [3] The record suggests there is a dispute over ownership of the cabin. Nothing in these reasons is intended to address or determine that matter. [4] He left his cabin in Newfoundland to Michael Jr. and Dennis Walsh.
