Clark Estate, Re, (1996) 180 N.B.R.(2d) 379 (CA)

• Judge: Hoyt, C.J.N.B., Turnbull and Bastarache, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: June 18, 1996
• Jurisdiction: New Brunswick
• Citations: (1996), 180 N.B.R.(2d) 379 (CA)

Clark Estate, Re (1996), 180 N.B.R.(2d) 379 (CA);

    180 R.N.-B.(2e) 379; 458 A.P.R. 379

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Ramona A.M. Nichols (respondent/appellant) v. Judith K. Brannen, Executrix of the Estate of Murray Henry Alward Clark (applicant/respondent)

(162/95/CA)

Indexed As: Clark Estate, Re

New Brunswick Court of Appeal

Hoyt, C.J.N.B., Turnbull and Bastarache, JJ.A.

June 26, 1996.

Summary:

A daughter appealed the grant of probate of her father's will. She alleged that he lacked testamentary capacity and that there were suspicious circumstances affecting the burden of proof of the will.

The New Brunswick Court of Appeal dismissed the appeal.

Wills - Topic 534

Testamentary capacity - Evidence and proof - Onus of proof - The New Bruns­wick Court of Appeal stated that "there is a presumption of testamentary capacity ... It is only where the trial judge accepts that there are suspicious circumstances that proof of capacity will have to be made on a balance of probabilities" - See paragraph 11.

Wills - Topic 536

Testamentary capacity - Evidence and proof - Presumption of testamentary ca­pacity - A testator's daughter alleged lack of testamentary capacity - She alleged suspicious circumstances, namely, that the testator was 73, blind and illiterate; he was confused about the number of days he had spent in hospital; he made a bequest to the operator of the special care home he moved into although he had only known her for five days; and he stated that his daughter was not his natural child, but that his wife was pregnant by another man when he married her (the daughter was two years old when he married her moth­er) - The probate court judge found no evidence of suspicious circumstances and determined that the presumption of capaci­ty was not vacated - The New Brunswick Court of Appeal affirmed the decision - See paragraphs 10 to 13.

Cases Noticed:

Clark Estate, Re (1993), 131 N.B.R.(2d) 116; 333 A.P.R. 116 (Prob. Ct.) refd to. [para. 4].

Stirling Estate, Re (1993), 134 N.B.R.(2d) 17; 342 A.P.R. 17 (C.A.), refd to. [para. 11].

Hay Estate, Re, [1995] 2 S.C.R. 876; 183 N.R. 1; 82 O.A.C. 161, refd to. [para. 11].

Vout v. Hay - see Hay Estate, Re.

Counsel:

Janice D. Spencer, for the appellant;

Paulette C. Garnett, Q.C., for the respon­dent.

This appeal was heard on June 18, 1996, before Hoyt, C.J.N.B., Turnbull and Basta­rache, JJ.A., of the New Brunswick Court of Appeal. On June 26, 1996, Bastarache, J.A., delivered the following judgment for the court.