Armitage Estate, Re, (1990) 95 N.S.R.(2d) 91 (ProbCt)

• Court: Probate Court of Nova Scotia (Canada)
• Case Date: January 15, 1990
• Jurisdiction: Nova Scotia
• Citations: (1990), 95 N.S.R.(2d) 91 (ProbCt)

Armitage Estate, Re (1990), 95 N.S.R.(2d) 91 (ProbCt);

    251 A.P.R. 91

MLB headnote and full text

In The Matter of the Estate of Frank R. Armitage, deceased;

And In the Matter of Proof in Solemn Form

Indexed As: Armitage Estate, Re

Nova Scotia Probate Court

Allen, Registrar of Probate

January 15, 1990.

Summary:

One of the testator's granddaughters claimed the testator lacked testamentary capacity and sought proof of his will in solemn form.

The Registrar of the Probate Court held that the proponents of the will proved that the testator had testamentary capacity when he made his will.

Wills - Topic 301

Testamentary capacity - General - The Registrar of the Nova Scotia Probate Court agreed with the statement that "in determining the testamentary capacity of an aged person it is necessary to be careful not to substitute suspicion for proof so as to render it impossible for old people to make wills ...".

Wills - Topic 407

Testamentary capacity - Mental disabilities - Psychotic or insane delusions - [See Wills - Topic 409 below].

Wills - Topic 409

Testamentary capacity - Mental disabilities - Confused state of mind - An 88 year old testator bequeathed his estate to his three sons, excluding the children of his deceased daughter - The testator clearly suffered periods of confusion, forgetfulness and hallucinations before and after he made his will - Medical experts opined that he lacked testamentary capacity, but did not examine the testator at or near the time he made his will and did concede the possibility of lucid intervals - The experienced lawyer who took instructions from the testator and attended upon execution of the will noted nothing to excite his suspicions - The Registrar of the Nova Scotia Probate Court held that the proponents of the will proved that the testator had testamentary capacity when he made his will - The Registrar was satisfied that the will was made during a lucid interval - The Registrar noted that it was important that the will itself was not unreasonable; it was not unreasonable to leave everything to living children and exclude grandchildren.

Wills - Topic 534

Testamentary capacity - Evidence and proof - Onus of proof - One of the testator's granddaughters claimed the testator lacked testamentary capacity and sought proof of his will in solemn form - The Registrar of the Nova Scotia Probate Court stated that the proponents of the will bore the burden of proving testamentary capacity.

Wills - Topic 536

Testamentary capacity - Evidence and proof - Presumption of testamentary capacity - The Registrar of the Nova Scotia Probate Court stated that "a person's will should not be lightly regarded and mere suspicion is not sufficient to label a person as irreversibly incompetent ...".

Cases Noticed:

Re Crawford (1975) 8 Nfld. & P.E.I.R. 318, agreed with [para. 44].

Counsel:

[not disclosed]