Suicide is a prominent public health concern in Australia, causing an average of 6.9 deaths every day (Australian Bureau of Statistics, 2015).
According to Biomed Inform Insights, suicide notes are left by 10 to 43% of people who die by suicide, many of which detailing the deceased’s intentions as to how they intend their assets and property to be distributed after their death.
While the deceased may intend the content of their suicide note to constitute their last will and testament, there are several legalities that the Court will take in to consideration before determining whether the suicide note is legally binding.
Testamentary capacity must be established in order for the suicide note to be considered a valid will. Testamentary capacity refers to the person’s legal and mental ability to make or alter their will. It is dependant on the frame of mind of the person prior to their death; their ability to understand facts relevant to their decision and to appreciate the consequences of that decision.
In most cases, adults are presumed to have the ability to make their own will. Testamentary capacity will typically only be challenged in the event that the testator (the person making the will) suffers from senility, dementia, insanity, or other unsoundness of mind, resulting in a lack of mental capacity to make a will. Provided the will-maker does not suffer from the aforementioned conditions before their suicide, the suicide note may be considered to be admitted to probate as their last will and testament.
WHEN MAY THE COURT RECOGNISE A SUICIDE NOTE AS A WILL
The Court recognises that a person contemplating suicide has “a compelling reason to make a will in order to dispose of his property as he wishes” Richardson Deceased (1986) 40 SASR 594. Providing that the language of the note is sufficiently clear, the Courts may consider the suicide note to be the deceased’s last will and testament.
THE WILLS ACT 1997
The validity of a suicide note as a will may however be challenged under The Wills Act 1997, which stipulates certain requirements that must be met in order to ensure the validity of a will. These requirements state that in order to be considered valid, the will should be signed by the testator (the person making the will) and two witnesses, in the presence of the testator.
In most cases, a suicide note will not comply with the Wills Act 1997, as it is unlikely that a person contemplating suicide will ask two witnesses to sign their suicide note. In some high profile cases, the Court has recognised that a suicidal person will not want to hint at their intentions and as a result will be reluctant to have the document witnessed. As a result, suicide notes have been admitted to Probate by the Court.
SUICIDE NOTE AS A WILL: CASE STUDIES
COSTA V PUBLIC TRUSTEE
In the case of Costa v Public Trustee  NSWSC 1271, the Court at first did not admit a suicide note to probate as it was initially considered to be a statement of “wishes and requests” rather than a document intended to have testamentary effect.
This decision was overturned on appeal where it was argued that the trial judge had not given sufficient weight to the “solemn unique occasion” upon which the suicide note was written. As a result, it was determined that the suicide note did in fact constitute a valid will and testament.
HENTYS LAWYERS CASE STUDY
The Estate Disputes team at Hentys Lawyers recently handled a case regarding a suicide note intended to be a Will. We were successfully able to admit the suicide note to probate as the deceased used the correct legal terminology in the note:
“I leave to you all my possessions, finances, and of course chico. This letter should suffice as my last will and testament, you should also look into, I had a MLC & LUCRF superannuation fund, also my home loan had insurance that covers death.”
Furthermore, the note was dated, and the Deceased acknowledged that the relationship had broken down and he still chose to leave his possessions to our client:
“I want you to know that its not because you left me its because I couldn’t find anything else to live for.”