Brownhill Estate, Re, (1986) 72 N.S.R.(2d) 181 (ProbCt)

Judge:O'Hearn, Prob. Ct. J.
Court:Nova Scotia Probate Court
Case Date:January 09, 1986
Jurisdiction:Nova Scotia
Citations:(1986), 72 N.S.R.(2d) 181 (ProbCt)
 
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Brownhill Estate, Re (1986), 72 N.S.R.(2d) 181 (ProbCt);

    173 A.P.R. 181

MLB headnote and full text

Re Brownhill Estate

(P 39791)

Indexed As: Brownhill Estate, Re

Nova Scotia Probate Court

O'Hearn, Prob. Ct. J.

January 9, 1986.

Summary:

An elderly woman died leaving a will which left the majority of her estate to be handled by her daughter Eugenie. Another daughter, Roberta, challenged the validity of the will.

The Nova Scotia Probate Court held that the will was valid and admitted it to probate.

Wills - Topic 301

Testamentary capacity - General principles - The Nova Scotia Probate Court stated that the time for determining testamentary capacity is the time of giving instructions and executing the will - See paragraph 50.

Wills - Topic 412

Testamentary capacity - Mental disabilities - Disorder of the mind - A testatrix cut one of her daughters out of her will allegedly because the daughter left the testatrix's church, the United Church of Canada, to become a Roman Catholic - After the testatrix's death the daughter argued that the mother had a disorder of the mind because of her reaction to the daughter's conversion - The Nova Scotia Probate Court held that it would be absurd to ascribe a disorder of the mind to an adherent of a mainline church such as the United Church, who was deeply affected by her daughter leaving the church - See paragraphs 69, 70.

Wills - Topic 541

Testamentary capacity - Evidence - Doctrine of suspicious circumstances - The Nova Scotia Probate Court examined several alleged "suspicious circumstances" around the execution of a testatrix's will and determined that the circumstances were innocent occurrences rather than "suspicious circumstances" - See paragraphs 73 to 80.

Wills - Topic 1704

Preparation and execution - Undue influence - What constitutes - General - The Nova Scotia Probate Court held that a will was valid where the testatrix was coerced by her daughter respecting the handling of her estate but there was no evidence that the coercion made any difference in the way the testatrix distributed her estate - See paragraphs 81 to 85.

Wills - Topic 7681

Construction - Quantity of interest taken - Residue - General - A testatrix left the residue of her estate to one of her daughters, E, in trust to distribute as the daughter saw fit among the children and grandchildren of the testatrix - Another daughter, R, argued that the will was invalid because it transferred the will making power to the daughter E - The Nova Scotia Probate Court held that the will was valid because the trust created by the will gave the trustee E power to distribute only among a class that was ascertained or ascertainable - See paragraphs 71, 72.

Cases Noticed:

Banks v. Goodfellow, L.R.5 Q.B. 549, refd to. [para. 66].

Blair v. Duncan, [1902] A.C. 37; 71 L.J.P.C. 22; 86 L.T. 157; 50 W.R. 369, dist. [para. 71].

Grimond (or MacIntyre) v. Grimond, [1905] A.C. 124; 74 L.J.P.C. 35, dist. [para. 71].

Wintle v. Nye, [1959] 1 W.L.R. 284; 103 S.J. 220; [1959] 1 All E.R. 522, refd to. [para. 75].

Fleet v. Farrell (1985), 71 N.S.R.(2d) 124; 171 A.P.R. 124, refd to. [para. 81].

Authors and Works Noticed:

Theobald on Wills (14th Ed. 1982), p. 35 [para. 73].

Counsel:

Alan G. Hayman, Q.C., and J. Cornish, for Eugenie M. MacLeod;

A.L. Caldwell, Q.C., for Roberta Brownhill Jollimore.

This case was heard before O Hearn, J., of the Nova Scotia Probate Court, who delivered the following decision on January 9, 1986:

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