Armitage Estate, Re, (1991) 106 N.S.R.(2d) 101 (CA)

• Judge: Jones, Chipman and Freeman, JJ.A.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: January 29, 1991
• Jurisdiction: Nova Scotia
• Citations: (1991), 106 N.S.R.(2d) 101 (CA)

Armitage Estate, Re (1991), 106 N.S.R.(2d) 101 (CA);

  288 A.P.R. 101

MLB headnote and full text

In The Matter Of the Estate of Frank Roosevelt Armitage, deceased;

And In The Matter Of the proof in solemn form of the will of Frank Roosevelt Armitage, deceased.

(S.C.A. No. 02237)

Indexed As: Armitage Estate, Re

Nova Scotia Supreme Court

Appeal Division

Jones, Chipman and Freeman, JJ.A.

January 29, 1991.

Summary:

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

The Registrar of the Probate Court, in a judgment reported 95 N.S.R.(2d) 91; 251 A.P.R. 91, held that the proponents of the will proved the testator had testamentary capacity when he made his will. The granddaughter appealed.

The Nova Scotia Supreme Court, Appeal Division, dismissed the appeal.

Wills - Topic 407

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

Wills - Topic 409

Testamentary capacity - Mental disabilities - Confused state of mind - An 88 year old testator bequeathed his estate to his three sons, excluding his deceased daughter's children - The testator 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 the will and conceded the possibility of lucid intervals - The experienced lawyer who took instructions from the testator and attended on execution of the will noted nothing suspicious - The Nova Scotia Court of Appeal affirmed that the proponents of the will proved that the testator had testamentary capacity when he made his will.

Cases Noticed:

Fergusson's Will, Re (1981), 43 N.S.R.(2d) 89; 81 A.P.R. 89 (C.A.), refd to. [para. 7].

Counsel:

T. Peter Sodero, Q.C., for the appellants, the children of Margaret (Armitage) Mill, deceased;

E.A. Nelson Blackburn, Q.C., for the respondent, Estate of F.R. Armitage.

This appeal was heard on January 29, 1991, before Jones, Chipman and Freeman, JJ.A., of the Nova Scotia Supreme Court, Appeal Division.

On January 29, 1991, Jones, J.A., delivered the following judgment orally for the Court of Appeal.