Baird Estate, Re, 2014 NSSC 266

• Judge: Bourgeois, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: July 11, 2014
• Jurisdiction: Nova Scotia
• Citations: 2014 NSSC 266;(2014), 348 N.S.R.(2d) 108 (SC)

Baird Estate, Re (2014), 348 N.S.R.(2d) 108 (SC);

      1100 A.P.R. 108

MLB headnote and full text

Temp. Cite: [2014] N.S.R.(2d) TBEd. JL.039

In The Estate Of Helen Baird

(Pictou Probate No. 20947; 2014 NSSC 266)

Indexed As: Baird Estate, Re

Nova Scotia Supreme Court

Bourgeois, J.

July 11, 2014.

Summary:

The 91 year old testatrix died in 2013. One of her daughters applied under s. 31(1) of the Probate Act to have the will proved in solemn form, alleging "suspicious circumstances" respecting the testatrix's testamentary capacity (allegedly suffered from dementia when the will was executed).

The Nova Scotia Supreme Court admitted the will to probate. The proponents of the will proved that the testatrix had testamentary capacity. She was fully aware of and approved the contents of her will.

Barristers and Solicitors - Topic 1686

Relationship with client - Preparation of wills - Duty to test the capacity of the testator - [See Barristers and Solicitors - Topic 1688 ].

Barristers and Solicitors - Topic 1688

Relationship with client - Preparation of wills - Duty to prepare notes - At issue was whether a 90 year old woman with health concerns had testamentary capacity - The woman's lawyer did not open a file, made minimal notes, failed to inquire into her health or medications and failed to request an assessment of her mental capacity - The Nova Scotia Supreme Court stated that the lawyer "could have done a better job in rendering professional services to [the woman]. The advisability of taking detailed notes surrounding testamentary instructions and issues of capacity and undue influence are well documented in the case authorities. Such notes are of assistance to a solicitor when being asked to recall his interaction with a now deceased client. They further provide by virtue of a record of the questions posed, answers provided and observations documented, assistance to the Court in reaching a determination as to whether or not a testatrix had capacity and was giving instructions freely. [The lawyer] should have made and retained better notes. He should have made further inquiries as to [the woman's] general health and circumstances, so as to better document the conclusion he reached that she was mentally competent, and to provide better assistance to the Court in assessing, several years later, whether she had testamentary capacity." - See paragraph 41.

Wills - Topic 536

Testamentary capacity - Evidence and proof - Presumption of testamentary capacity - [See Wills - Topic 541 ].

Wills - Topic 541

Testamentary capacity - Evidence and proof - Doctrine of suspicious circumstances - The 91 year old testatrix died in 2013 - One of her daughters applied under s. 31(1) of the Probate Act to have the will proved in solemn form, alleging "suspicious circumstances" respecting the testatrix's testamentary capacity (allegedly suffered from dementia when the will was executed) - The Nova Scotia Supreme Court admitted the will to probate - Mere allegations of suspicious circumstances were not sufficient to displace the presumption of testamentary capacity - The daughter met the initial burden, given the testatrix's age and health concerns (including some decline in mental capacity) when she executed the will at age 90 - The burden then fell on the proponents of the will to prove testamentary capacity on a balance of probabilities - The proponents of the will discharged that burden - The court was satisfied that the testatrix executed the will with full knowledge and approval of its contents - She knew what property she owned and the approximate value of her bank account - There was evidence that she was alert and oriented when written instructions were taken and when she executed the will - See paragraphs 15 to 51.

Cases Noticed:

Vout v. Hay - see Hay Estate, Re.

Hay Estate, Re, [1995] 2 S.C.R. 876; 183 N.R. 1; 82 O.A.C. 161, refd to. [para. 10].

Willis Estate, Re (2009), 280 N.S.R.(2d) 87; 891 A.P.R. 87; 2009 NSSC 231, refd to. [para. 10].

Nieuwland v. Yorke Estate (2011), 298 N.S.R.(2d) 203; 945 A.P.R. 203; 2011 NSSC 19, refd to. [para. 10].

Fawson Estate, Re (2012), 313 N.S.R.(2d) 150; 990 A.P.R. 150; 2012 NSSC 55, refd to. [para. 10].

Counsel:

Keith MacKay, for the applicant;

Jill Graham-Scanlan, for Edward Baird and Barbara D'Eon.

This application was heard on June 2, 3 and 5, 2014, at Pictou, N.S., before Bourgeois, J., of the Nova Scotia Supreme Court, who delivered the following judgment on July 11, 2014.