Adams Will, Re, (1990) 102 N.S.R.(2d) 98 (ProbCt)

Court:Nova Scotia Probate Court
Case Date:December 14, 1990
Jurisdiction:Nova Scotia
Citations:(1990), 102 N.S.R.(2d) 98 (ProbCt)
 
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Adams Will, Re (1990), 102 N.S.R.(2d) 98 (ProbCt);

    279 A.P.R. 98

MLB headnote and full text

In The Matter Of: Section 11 of the Probate Act, R.S.N.S. 1989, c. 359;

And In The Matter Of: The interpretation of paragraph 4.02 of the Will of Ellen Emily Orme Adams (also known as Nellie Adams), late of Halifax, Nova Scotia

(C.H. No. 72594)

Indexed As: Adams Will, Re

Nova Scotia Probate Court

Bateman, J.C.C.

December 14, 1990.

Summary:

The executrix under a will applied for an interpretation of a paragraph of the will.

The Nova Scotia Probate Court construed the will accordingly.

Wills - Topic 5184

Construction - General - Evidence - Armchair rule - In her will a testatrix left certain land to her cousin or to her cousin's husband, if she predeceased her, then if both predeceased her she gave the land to their daughter and the sum of $50,000 to their other daughter - The other daughter claimed entitlement to $50,000 in any event - The Nova Scotia Probate Court held that the $50,000 gift was conditional upon both the cousin and her husband predeceasing the testatrix - The court applied the armchair rule, which permits construction of the will in the light of surrounding circumstances.

Wills - Topic 8005

Construction - Conditional gifts - Conditions precedent - General - [See Wills - Topic 5184].

Wills - Topic 8550

Evidence - Extrinsic evidence - Of surrounding circumstances to interpret will - [See Wills - Topic 5184].

Cases Noticed:

Higgins v. Dawson, [1902] A.C. 1, consd. [para. 9].

Authors and Works Noticed:

Feeney, The Canadian Law of Wills (3rd Ed. 1987), pp. 13 [para. 8]; 65 [para. 11].

Counsel:

J. William Jordan, Q.C., for the Estate of Ellen Emily Orme Adams;

Timothy C. Matthews, for Joseph A. Keough;

Alan G. Hayman, Q.C., for Joan Canham.

This case was heard at Halifax, Nova Scotia, before Bateman, J.C.C., of the Nova Scotia Probate Court, who delivered the following judgment on December 14, 1990:

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