Casavechia Estate, Re, (2014) 342 N.S.R.(2d) 41 (ProbCt)

• Judge: McDougall, J.
• Court: Probate Court of Nova Scotia (Canada)
• Case Date: November 14, 2013
• Jurisdiction: Nova Scotia
• Citations: (2014), 342 N.S.R.(2d) 41 (ProbCt);2014 NSSC 73

Casavechia Estate, Re (2014), 342 N.S.R.(2d) 41 (ProbCt);

    1083 A.P.R. 41

MLB headnote and full text

Temp. Cite: [2014] N.S.R.(2d) TBEd. FE.055

In the Estate of Louis Joseph William Casavechia also known as William John Casavechia, Deceased

(Hfx No. 418956; Probate Court File No. H-60181; 2014 NSSC 73)

Indexed As: Casavechia Estate, Re

Nova Scotia Probate Court

McDougall, J.

February 25, 2014.

Summary:

The deceased's daughter filed an application for proof in solemn form of a handwritten letter prepared by her father two years before his death. The letter purported to give the applicant a lakefront building lot to be carved out of the deceased's property when it was sold.

The Nova Scotia Probate Court allowed the application.

Wills - Topic 23

Testamentary instruments - Codicils - Testamentary intention - The deceased's daughter filed an application for proof in solemn form of a handwritten letter prepared by her father two years before his death - The letter purported to give the applicant a lakefront building lot to be carved out of the deceased's property when it was sold - The Nova Scotia Probate Court allowed the application - There was no dispute that the letter met the technical requirements of a holograph codicil under s. 6(2) of the Wills Act - However, to be a valid holographic instrument, the letter also had to demonstrate a testamentary intention - The court found that it did - The court considered, inter alia, that although handwritten, the letter's contents were of a more formal or ceremonious nature than one would expect of an ordinary note from a father to his daughter; the letter used the language of "gift"; and the deceased also provided a reason for giving his daughter the lot.

Wills - Topic 28

Testamentary instruments - Codicils - Holograph codicils - Section 6(1) of the Wills Act provided that "No will is valid unless it is in writing and executed in manner hereinafter mentioned: ..." - Section 6(2) provided that "Notwithstanding subsection (1), a will is valid if it is wholly in the testator's own handwriting and it is signed by the testator." - The Nova Scotia Probate Court stated that s. 6(2) was added to the Wills Act as part of a significant amendment in 2006, which was declared in force in August 2008 - With the addition of s. 6(2), holograph wills and codicils became permissible in Nova Scotia - See paragraphs 47 and 48.

Wills - Topic 28

Testamentary instruments - Codicils - Holograph codicils - [See Wills - Topic 23 ].

Wills - Topic 63

Testamentary instruments - Holograph wills - Validity of - [See first Wills - Topic 28 ].

Cases Noticed:

Gray Estate, Re, [1958] S.C.R. 392, appld. [para. 3].

Canada Permanent Trust Co. v. Bowman, [1962] S.C.R. 711, refd to. [para. 51].

Statutes Noticed:

Wills Act, R.S.N.S. 1989, c. 505, sect. 6(2) [para. 47].

Counsel:

Richard Niedermayer, Ll.B., and Tanya Butler, Ll.B., for the applicant, Shannon Noseworthy;

Helen L. Foote, Ll.B., for the respondent, Glenna Casavechia;

Sheldon Casavechia and Jace Downey, self-represented respondents;

No one appearing for the respondents, Nicole Casavechia and Josh Downey;

Wayne Francis, Ll.B., for the Estate, which took no position in the application.

This application was heard on November 14, 2013, in Halifax, N.S., by McDougall, J., of the Nova Scotia Probate Court, who delivered the following decision on February 25, 2014.