Behie Estate, Re, (1977) 24 N.S.R.(2d) 1 (CA)

• Judge: Coffin, Cooper and Macdonald, JJ.A.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: November 28, 1977
• Jurisdiction: Nova Scotia
• Citations: (1977), 24 N.S.R.(2d) 1 (CA)

Behie Estate, Re (1977), 24 N.S.R.(2d) 1 (CA);

    35 A.P.R. 1

MLB headnote and full text

Re Behie's Estate

Indexed As: Behie Estate, Re

Nova Scotia Supreme Court

Appeal Division

Coffin, Cooper and Macdonald, JJ.A.

November 28, 1977.

Summary:

This case arose out of the application by the administratrix of an estate to have a lost will proved in solemn form. After an old lady died her will could not be found, although the will was known to have been in a certain place in her house 3 weeks before she died. The administratrix of the old lady's estate applied to have the lost will proved. The Nova Scotia Probate Court allowed the application and found that the will was proved. See 23 N.S.R.(2d) 361, 32 A.P.R. 361. The Probate Court found that the presumption of revocation of a lost will was rebutted by the evidence. Four heirs-at-law appealed.

The Nova Scotia Court of Appeal dismissed the appeal and affirmed the judgment of the Probate Court.

Practice - Topic 8800

Appeals - Duty of appeal court regarding findings of fact by trial judge - The Nova Scotia Court of Appeal refused to disturb the fact findings of a trial judge in the absence of palpable error - See paragraph 23.

Wills - Topic 2342

Revocation of wills - Revocation by act of testator - Lost will - Presumption of revocation where will is lost - After an old lady died her will could not be found, although the will was known to have been in a certain place in her house 3 weeks before she died - The Nova Scotia Probate Court set out the principles applicable to the proof of a lost will and the effect of the presumption of revocation of a lost will - The Probate Court found that the presumption was rebutted by the evidence and that a valid will existed at the time of the old lady's death - The Probate Court found that the will was proved by the recollection of the witnesses to the drawing and execution of the will - The Nova Scotia Court of Appeal affirmed the decision of the Probate Court.

Wills - Topic 2344

Revocation of wills - Revocation by act of testator - Lost will - Presumption against fraudulent taking - The Nova Scotia Court of Appeal stated that there is a presumption against the fraudulent taking of a will - See paragraph 23.

Cases Noticed:

MacBurnie v. Patriquin (1976), 14 N.S.R.(2d) 680; 11 A.P.R. 680, appld. [para. 15].

Sugden v. Lord St. Leonards, [1874-80] All E.R. Rep. 2l; 1 P.D. 154 (C.A.), appld. [para. 15].

Allan v. Morrison, [1900] A.C. 604 (P.C.), folld. [para. 23].

Authors and Works Noticed:

Jarman on Wills (8th Ed.), vol. 1, p. 170 [para. 15].

Williams on Wills (3rd Ed.), p. 110 [para. 23].

Counsel:

Linden M. Smith, Q.C., for respondent;

C. Hanson Dowell, for Estate of Clara Josephine Behie.

This case was heard on September 23, 1977, at Halifax, Nova Scotia, before COFFIN, COOPER and MACDONALD, JJ.A., of the Nova Scotia Supreme Court, Appeal Division.

On November 28, 1977, COOPER, J.A., delivered the following judgment for the Appeal Division: