Date: 17 Dec, 2021| Author: Fred Streiman

As we have described elsewhere, a holographic Will is a valid Will if entirely in the handwriting of the testator/willmaker and is signed by them. There may be no other writing or printing on the pages. There was no need for many of the normal formalities of a Will, including the witnessing by two individuals. As we have described with the upcoming changes in which allow the court to declare valid a Will even though it does not meet all the statutory formalities, this area of law will soon swing wide open as of January 1, 2022.

In the 2020 case of McGrath v. Joy, we have the tragic yet interesting facts situation in which a 49-year-old committed suicide. In his suicide note, he indicated that he wished to make a number of changes to his existing Will primarily disinheriting his second wife. The question arose as to whether or not the suicide note was a valid holographic Will.

The validity of holographic wills, especially in light of the upcoming changes will be a field day for litigators as it involves the dramatically wide-open discretion of the court. In this particular case, the court said no it was not a valid holographic Will, based upon the reasoning that the testator/willmaker did not have the appropriate testamentary capacity. As we have explained elsewhere, testamentary capacity simply means that the willmaker knew what they were doing and intended to make a document that finally disposed of their assets on their death. A suicide note does not in itself demonstrate testamentary incapacity. However, in this case, there was evidence that the deceased had been abusing alcohol and drugs for many years, including the day in question when he took his own life. The handwriting was sloppy nearly illegible and contained a profanity-laced diatribe against his wife. The court found so many suspicious circumstances surrounding the preparation of the suicide note that the court decided that the person attempting to prove the holographic Will had failed.  Their test was to prove on a balance of probabilities that the deceased had the requisite testamentary capacity.

So suicide in and of itself does not prove a lack of capacity.  But it obviously rings alarms that need to be listened to.