



COURT OF APPEAL FOR ONTARIO

CITATION: McGrath v. Joy, 2022 ONCA 119

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 Childrens Lawyer

Defendants
    (Respondents)

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.

Gillese J.A.:

[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.

I.

OVERVIEW

[4]

Sadly, 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. Joys handwriting, in the
    pocket of his shorts (the 
Suicide Note
).

[5]

In 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 Im 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]

[6]

On 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.

[7]

Michael Ronald McGrath is Mr. Joys stepson and
    the appellant in this matter (the 
Appellant
). He brought an application
    to have the Suicide Note declared Mr. Joys valid will and admitted to
    probate (the 
Application
). Michael McGrath Jr. (
Michael
    Jr.
) is the Appellants 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 Childrens Lawyer (the 
OCL
) represented
    Michael Jr. on the Application. It wholly supported the Appellants
    position on the Application that the Suicide Note was Mr. Joys valid will and should
    be admitted to probate.

[8]

The 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.

[9]

The Application was opposed by Ms. Joy and
    Dexter Ramsundarsingh (
Mr. Ramsundarsingh
). Mr.
    Ramsundarsingh is Steve Ramsundarsinghs son and a long-time friend of the deceased.
    I refer to Ms. Joy and Mr. Ramsundarsingh together as the 
Respondents
.

[10]

The 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.

[11]

There 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. Joys 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.

[12]

Based on Mr. Joys 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.

[13]

By further order dated December 2, 2020, the
    application judge made a blended costs order in which he ordered Mr. Joys
    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]

[14]

On this appeal, the Appellant challenges the correctness
    of both the application judges conclusion that Mr. Joy lacked testamentary capacity
    and the Costs Order. In my view, the Appellant succeeds on both matters.

[15]

Consequently, for the reasons that follow, I
    would allow the appeal, declare the Suicide Note to be Mr. Joys valid will,
    and admit it to probate. I would also set aside the Costs Order, order the
    Estate to pay the Appellants full indemnity costs both below and in this court,
    and substitute new costs orders in respect of the Respondents and the OCL.

II.

BACKGROUND

[16]

Mr. 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.

[17]

Mr. 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. Ramsundarsinghs 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.

[18]

In 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.

[19]

The Appellant is Mr. Joys stepson and only
    child. Mr. Joy is the only father the Appellant has known. The Appellants 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.

[20]

The 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.

[21]

The 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.

[22]

While 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.

[23]

Mr. 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

[24]

In 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

[25]

In 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.

[26]

In 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.

[27]

The 2016 Will concluded by Mr. Joy naming Steve
    Ramsundarsingh to carry out my request.

The 2019 Holograph Will

[28]

As 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.

[29]

Mr. 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.

[30]

Mr. 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.

[31]

At about 11 p.m. that evening, Mr. Joy, together
    with Ms. Joys 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.

[32]

When 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.

[33]

The 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

[34]

In 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.

[35]

The 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. Queens 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.

[36]

After setting out the parties positions, the
    application judge stated his conclusion that the Appellant had not met his
    evidentiary burden of establishing Mr. Joys 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. Joys
    incapacity and he did not have the benefit of cross-examination evidence about
    Mr. Joys 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. Joys daily life, according
    to those who knew him best; and

·

the Suicide Note was a profanity laced diatribe
    against his spouse, Ms. Joy.

[37]

Having concluded that the Suicide Note was not a
    valid will due to incapacity on Mr. Joys part, the application judge found it
    unnecessary to consider Mr. Ramsundarsinghs alternative submission that the
    Suicide Note should be considered a codicil to the 2016 Will.

The Costs Order

[38]

The 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.

[39]

He 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.

[40]

The 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. Joys 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.

[41]

The 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

[42]

The 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?

[43]

If this court finds that the Suicide Note is a
    valid will, it is necessary to address Mr. Ramsundarsinghs contention that the
    Suicide Note is more correctly characterized as a codicil to the 2016 Will.

[44]

Before addressing these issues, the matter of
    the standard of review must be determined.

V.

THE STANDARD OF REVIEW

[45]

The 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 judges 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 judges 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.

[46]

In my view, no deference is owed to the application
    judges 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. Joys use of drugs and alcohol generally and on the day before
    he wrote the Suicide Note.

[47]

A failure to apply the relevant legal principles
    in determining an issue is an error in principle warranting this courts
    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

[48]

On 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. Joys 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.

[49]

Thus, 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

[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), 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

[51]

Because 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

[52]

There 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.

[53]

On 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

[54]

It is important to consider this element
    informed by an understanding of Mr. Joys 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. Joys evidence, the
    conflict between her and Mr. Joy was often related to Mr. Joys unfortunate financial
    situation.

[55]

The 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.

[56]

Mr. Joy also recalled his beloved cabin in
    Newfoundland, asking in the Suicide Note that his ashes be spread in front of
    it.

[57]

However, 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.

[58]

Accordingly, 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

[59]

I 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

[60]

In the Suicide Note, Mr. Joy left everything
    to his stepson and grandson. Both are people who might be expected to benefit
    under Mr. Joys will and both were named beneficiaries in Mr. Joys prior wills
    (i.e., the 2014 Will and the 2016 Will).

[61]

Given their relationships with Mr. Joy, Ms. Joy
    and Mr. Ramsundarsingh are people that also might be expected to benefit under
    Mr. Joys 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.

[62]

Mr. 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.

[63]

As 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.

[64]

In 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

[65]

Because 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?

[66]

The 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.

[67]

As 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. Joys 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.
    Joys testamentary capacity.

[68]

In 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. Joys regular use of drugs and alcohol, and
    the amount he consumed of both substances the day before he died;

b.

Dr. Sinyors evidence was inconclusive on Mr.
    Joys incapacity and he did not have the benefit of the cross-examination
    evidence about Mr. Joys history of substance abuse and actual consumption on
    the day before he died; 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.

[69]

I will deal with each group in turn.

a.

Mr. Joys Substance Use

[70]

It is an error to infer a lack of testamentary
    capacity based on a persons 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.

[71]

In
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 testators medical condition. The court concluded that
    the testators 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.

[72]

Similarly, in cases where testamentary capacity is
    questioned due to a testators 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.

[73]

In
Dujardin
, the testators 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.

[74]

Neither level of court in
Dujardin

ignored
    the evidence surrounding the testators 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 judges reasons for it.

[75]

It 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
    judges 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 testators alcohol abuse and possible organic brain damage.

[76]

In 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.

[77]

Further, despite apparently daily and increasing
    use of alcohol and drugs, Mr. Joy continued to function at work. Mr. Joys
    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.

[78]

Although 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. Sinyors Evidence

[79]

Unlike the application judge, I am not
    dismissive of Dr. Sinyors 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.

[80]

It 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. Joys 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. Joys alcohol
    and substance use before he wrote the Report.

[81]

Many people today struggle with mental health
    challenges. Many people also use and abuse alcohol and drugs. Dr. Sinyors
    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

[82]

Respectfully, 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. Joys 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. Joys statement in
    that note that he was beyond my control because of Ms. Joy.

[83]

Absent 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. Joys 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

[84]

Mr. 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.

[85]

The 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

[86]

Because I have determined that the Suicide Note
    is Mr. Joys valid will, I must address Mr. Ramsundarsinghs 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.
    Joys 50% shares in the Businesses would pass to Mr. Ramsundarsingh by virtue
    of the 2016 Will.

[87]

I reject this submission for two reasons.

[88]

First, 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. Joys valid will. It is not a
    codicil.

[89]

Second, to accede to this submission would result
    in the maladministration of Mr. Joys 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. Joys valid will.

VIII.

COSTS WERE WRONGLY DECIDED BELOW

[90]

The 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] 1 S.C.R. 303, at para. 27.

[91]

Traditionally in estate litigation, the parties
    costs were paid from the testators 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 testators capacity to make the will,
    it is in the public interest that such questions be resolved without cost to
    those questioning the wills validity. And, where the difficulties or
    ambiguities that gave rise to the litigation are caused by the testator, it is again
    appropriate for the testators estate to bear the costs of their resolution.

[92]

Over time, it became apparent that the courts
    had to guard against allowing their processes to be used to unnecessarily
    deplete a testators 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.]

[93]

This 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.

[94]

The 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 testators estate.

[95]

It 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.

[96]

The 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.

[97]

Had 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. Joys estate was properly administered. Mr.
    Joy wrote the Suicide Note in suspicious circumstances. Those circumstances
    created reasonable grounds on which to question Mr. Joys testamentary capacity
    at the time he wrote the Suicide Note. Moreover, it was Mr. Joys 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.

[98]

Accordingly, 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.

[99]

To the extent that the application judges 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].

[100]

The Appellant did not act unreasonably in bringing the Application.
    Because of the suspicious circumstances surrounding the making of the Suicide
    Note, Mr. Joys 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. Joys estate,
    clearly indicating that he would not bring the Application. The Appellant brought
    the Application to ensure that Mr. Joys 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.

[101]

Nor 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 Appellants position on the application was also of
    benefit to his minor son, Michael Jr., a position which the OCL fully
    supported.

[102]

I 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 judges 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.

[103]

On 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 Appellants 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 Appellants
    costs of the Application, on a full indemnity basis.

[104]

I 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 appellants
    costs are generally payable from the estate on a full indemnity basis:
McDougald
    Estate
, at paras. 87-88.

[105]

Accordingly, 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 Appellants costs on a partial
    indemnity basis. Their participation at first instance was necessary to ensure
    that the questions surrounding Mr. Joys 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.

[106]

Consequently, in my view, the Respondents are entitled to their
    reasonable costs of the appeal from the Estate. Because it was Mr. Joys 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.

[107]

I 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. Joys submissions in its factum, relied on the documentation that
    she filed, and made no oral submissions.

IX.

DISPOSITION

[108]

For these reasons, I would allow the appeal and declare that the Suicide
    Note, as Mr. Joys valid will, be admitted to probate.

[109]

Further, 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.

[110]

I 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.

[111]

For 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 Trotter 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 d
ated 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.


