Baird Estate, Re, (2015) 366 N.S.R.(2d) 327 (CA)

• Judge: Fichaud, Farrar and Bryson, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: November 03, 2015
• Jurisdiction: Nova Scotia
• Citations: (2015), 366 N.S.R.(2d) 327 (CA);2015 NSCA 98

Baird Estate, Re (2015), 366 N.S.R.(2d) 327 (CA);

    1154 A.P.R. 327

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. NO.006

Grace Helen Whitford (appellant) v. Edward Baird and Barbara Elizabeth D'Eon (respondents)

(CA 430325; 2015 NSCA 98)

Indexed As: Baird Estate, Re

Nova Scotia Court of Appeal

Fichaud, Farrar and Bryson, JJ.A.

November 3, 2015.

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, in a judgment reported (2014), 348 N.S.R.(2d) 108; 1100 A.P.R. 108, 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. The daughter appealed.

The Nova Scotia Court of Appeal dismissed the appeal.

Wills - Topic 407

Testamentary capacity - Mental disabilities - Psychotic or insane delusions - [See Wills - Topic 541 ].

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 daughter was not disinherited, but was removed as one of the executors - The trial judge 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 - The Nova Scotia Court of Appeal affirmed the decision - The court stated, inter alia, that "The evidence of alleged delusion in this case is uncertain and does not immediately precede the change of executor. Even so, the test for insane delusion links any change to a sound state of mind which would not have made that change. ... it is hard to see that [the testatrix's] minimal alteration of who would administer her estate can only be explained by an insane delusion." - See paragraph 27.

Cases Noticed:

Banks v. Goodfellow (1870), L.R. 5 Q.B. 549, refd to. [para. 13].

O'Neil v. Royal Trust Co., [1946] S.C.R. 622, refd to. [para. 14].

Fawson Estate, Re (2012), 313 N.S.R.(2d) 150; 990 A.P.R. 150; 2012 NSSC 55, refd to. [para. 15].

Skinner v. Farquharson (1902), 32 S.C.R. 58, refd to. [para. 21].

Wittenberg Estate, Re (2015), 364 N.S.R.(2d) 176; 1146 A.P.R. 176; 2015 NSCA 79, refd to. [para. 25].

Counsel:

Keith MacKay, for the appellant;

Jill Graham-Scanlan, for the respondent.

This appeal was heard on September 21, 2015, at Halifax, N.S., before Fichaud, Farrar and Bryson, JJ.A., of the Nova Scotia Court of Appeal.

On November 3, 2015, Bryson, J.A., delivered the following judgment for the Court of Appeal.