Suicide is the leading cause of death for Australians between 15 and 44 years of age. Every year, over 65,000 Australians make a suicide attempt. For those left behind, the grief can be particularly intense and difficult. Suicide can raise many questions for family and friends, many of which will relate to that person’s state of mind before their death.
Mood disorders such as depression will impact the will-making process, particularly if they are accompanied by symptoms of hopelessness or delusions of persecution, poverty or sin, as this can alter a will-maker’s normal perception of their assets or relationships.
If the person who has committed suicide left behind a will, it is not uncommon for family members to wonder if they were of sound mind when writing the will, particularly if there are some surprises as to how assets are to be distributed. In some cases, a suicide note may be left as a will, while in other circumstances the deceased may have updated their will not long before their death.
If a family member has a concern as to the validity of the will, they may lodge a will contest claim on the basis of testamentary capacity.
What is Testamentary Capacity?
Given the circumstances around death, suicide is a common reason behind a testamentary capacity claim. In fact, in a case series of 25 challenges based on testamentary capacity that were referred to a Canadian psychiatrist, 12% related to suicide. This is unsurprising, given that testamentary capacity relates to the mental capacity of the deceased at the time of writing their last will and testament.
For a will to be considered valid, the testator (the person making the will) must be of sound mind, memory and understanding, this is known as having testamentary capacity.
All will-makers are assumed to have testamentary capacity unless evidence can be presented to the court that proves otherwise. Under this circumstance, the executor of the will is under the obligation to prove that they did have testamentary capacity in order to prevent a claim on the estate.
If the court determines that the deceased did not have the mental capacity to make a legally binding and valid will, it can be overturned. This means that it will not be taken into consideration when distributing the assets of the deceased.
How does Suicide Affect Testamentary Capacity
When someone commits suicide, their mental state when writing their will may be brought into question. The most common consideration is whether the mental illness or depression that lead to suicide was severe enough to impact the testator’s testamentary capacity.
A person suffering from severe depression often feels isolated or rejected from their loved ones, which can make them more likely to change their wishes in the will at the last minute. This may result in a final will that does not meet family obligations or that deviates significantly from a previous will.
In these instances, the court is likely to apply the common law test for testamentary capacity as set out in the case of Banks v Goodfellow, as follows:
“It is essential to the exercise of such a power that a testator [a] shall understand the nature of the act and its effects; [b] shall understand the extent of the property of which he is disposing; [c] shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, [d] that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”
Another factor that can complicate the issue is if the deceased leaves behind a suicide note that they intend to be their last will and testament. Under these circumstances, the issues surrounding the formal requirements of a will, as well as potential interpretation concerns are brought up. In this instance, there is no guarantee that the suicide note will be admitted to the court as the last valid will, and even if it is admitted, the courts have gone back and forth on upholding these notes as valid. This is because it is not always clear whether the note is intended to express the deceased’s testamentary intent or not.
In summary, the act of suicide is not necessarily regarded as evidence of testamentary incapacity. When someone commits suicide, it is usually as a result of an underlying psychiatric disorder, or disorders, such as depression, alcohol abuse or delusional beliefs. As such, the issue of capacity should be considered in relation to these contextual psychiatric disorders. The nature of the distribution of assets will also be considered, i.e. whether this was an expected and rational distribution of assets. In addition, the court will look at the proximity of the making of the will to the writing of the suicide note and the suicide itself.
As with all estate disputes, there are no guaranteed outcomes. If you’ve found yourself in a circumstance where you may have to challenge the will of someone who has committed suicide, the best course of action is to consult an estate professional for advice.
Case Study: Robinson V Jones  VSC 222 – McMillan J
Principal Point of the Case: A person who commits suicide can have testamentary capacity. However, if someone has committed suicide, it can bring up an argument as to the finality of their intentions, as the death was planned rather than accidental.
On March 8th 2013, the deceased committed suicide, leaving a will dated back to the 26th of June, which left 20% of his estate to his former partner Ms Jones. The remainder of the estate was left to another former partner, Mrs Parker, with whom he had been in a long-term relationship, as well as her daughter Mrs Ridgwell and granddaughter, Ms Talbot. The deceased purchased a property for Ms Jones and made a number of gifts to her and her family. Both the deceased and Mrs Parker were alcoholics. The deceased suffered chronic depression and had already made two previous suicide attempts.
In February 2013 the deceased separated form Ms Jones, which led to a breakdown and his admission to a private hospital. A few days later, he called the executor of his will and asked him to remove the gift in his will to Ms Jones and instead give her son a $500,000 gift and leave the rest of the original 20% to a charity that he volunteered with. The executor drafted the will and sent it back to the deceased, asking him to read it and make arrangements for it to be signed. He claimed that the deceased verbally approved the will, however he died before signing it. The deceased left a suicide note and a note to Ms Jones, neither of which mentioned the informal will. As such, the court had to decide whether to admit the will from 2012, or the unsigned updated will into probate.
The judge in the case stated that the main issues in deciding whether or not the informal will should be admitted to probate were as follows:
- Whether the document was in fact intended to be the last will and testament of the deceased
- Whether the deceased had testamentary capacity when he asked for the new will to be drafted
The judge in the case stated that committing suicide did not necessarily mean that the deceased lacked testamentary capacity, but it was a consideration. She noted that in the 7-day period between receiving the draft of the will and the death of the deceased, he was drinking every day and was not in a good mental state. She also noted that the deceased was aware of the requirements of executing the will and did not uphold them.
The judge was not satisfied that the informal will was intended to be the final testamentary wishes of the deceased. She also noted that the executor did not keep file notes of important conversations such as the conversation with the deceased where he gave verbal approval for the will. She also held that the deceased did not die suddenly, and as such, he could have signed the will before committing suicide, had he intended for it to be his last will and testament. He also did not tell anyone else of his wishes to change his will.
Finally, she stated that she was not satisfied the deceased had testamentary capacity as he was erratic and mentally unstable before he instructed the executor to change his will. As such, the 2012 will was admitted into probate.
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