Borgen Estate v. Borgen et al., (1973) 5 Nfld. & P.E.I.R. 275 (NFSC)

• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: February 19, 1973
• Jurisdiction: Newfoundland and Labrador
• Citations: (1973), 5 Nfld. & P.E.I.R. 275 (NFSC)

Borgen Estate v. Borgen (1973), 5 Nfld. & P.E.I.R. 275 (NFSC)

MLB headnote and full text

Borgen's Estate v. Borgen et al.

Indexed As: Borgen Estate v. Borgen et al.

Newfoundland Supreme Court

At Trial

Furlong, C.J.

February 19, 1973.

Summary:

This action arose out of a dispute between an Executor and legatees over the effect of a holograph will. The testator stated in the will that he was going on a trip and wanted to change the distribution of his estate. The testator survived the trip for ten years. One of the heirs of the testator opposed probate of the will on the grounds that the will was conditional upon the testator's death during the trip. The Executor took action by originating summons for an order admitting the holograph will to probate. The Supreme Court granted the order.

The Supreme Court found that the contingency expressed in the will was merely the motive for the making of the will. The Supreme Court held that the will was not conditional upon death during the trip.

Evidence - Topic 3190

Documentary evidence - Extrinsic evidence to determine nature of instrument - Where nature of instrument ambiguous - Newfoundland Supreme Court held evidence of surrounding circumstances could be admitted to determine the testamentary nature of an instrument - Paragraph 13.

Wills - Topic 31

Testamentary disposition - General - Nature and characteristics of testamentary instruments - Instruments conditionally testamentary - Contingency reason for making will - Will stated wish to make a will before a certain trip - Testator survived trip - Newfoundland Supreme Court found trip was merely the motive for making the will and held that the will was not conditional.

Cases Noticed:

In the goods of Spratt, [1897] P. 28, appld. [para. 10].

Re Swords, [1929] 3 D.L.R. 564, appld. [para. 11].

Counsel:

John Sinnott, for the plaintiff;

John O'Neill, Q.C., for the defendant, Arne Borgen;

G. Stirling, Q.C., for the defendant, Audrey B. Borgen.