Clement v. Downing Estate and Poirier, (1985) 64 N.B.R.(2d) 191 (CA)

• Judge: This appeal was heard before La Forest and Angers, JJ.A., and Jean, J.C. Q.B. (ad hoc), of the New Brunswick Court of Appeal on February 22, 1984. The decision of the Court of Appeal was delivered on February 25, 1985 by Angers, J.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: February 22, 1984
• Jurisdiction: New Brunswick
• Citations: (1985), 64 N.B.R.(2d) 191 (CA)

Clement v. Downing Estate (1985), 64 N.B.R.(2d) 191 (CA);

    64 R.N.-B.(2e) 191; 165 A.P.R. 191

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Clement v. Downing's Estate and Poirier

(68/83/CA)

Indexed As: Clement v. Downing Estate and Poirier

Répertorié: Clement v. Downing Estate and Poirier

New Brunswick Court of Appeal

La Forest and Angers, JJ.A. and Jean, J.C.Q.B.(ad hoc)

February 25, 1985.

Summary:

Résumé:

The plaintiff nephew of a deceased testator challenged the validity of the testator's will, which was never probated. The plaintiff alleged that the testator did not possess testamentary capacity when the will was signed, and that the defendant executor and sole beneficiary exercised undue influence over the testator in the execution of the will.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported in 44 N.B.R.(2d) 700; 116 A.P.R. 700, dismissed the action and held that the will was valid, where the defendant established that the testator had testamentary capacity. The plaintiff appealed.

The New Brunswick Court of Appeal dismissed the appeal.

Courts - Topic 5736

Provincial courts - New Brunswick - Court of Queen's Bench - Jurisdiction - Wills - The New Brunswick Court of Appeal held that the Court of Queen's Bench could take jurisdiction over an action based on a claim for ownership of land, allegedly bequeathed by a registered but unprobated will - The Court of Appeal held that the Queen's Bench had jurisdiction, rather than the Probate Court, because essentially the claim involved land, not the validity of the will - See paragraph 10.

Wills - Topic 541

Testamentary capacity - Evidence - Doctrine of suspicious circumstances - The defendant befriended an illiterate elderly man and obtained the man's mark on a will naming the defendant executor and sole beneficiary - The New Brunswick Court of Appeal affirmed that the testator had testamentary capacity and that the will was made according to his instructions and read to him - The court questioned whether the doctrine of suspicious circumstances arose, but in any event affirmed that the will was valid - See paragraphs 11 to 17.

Counsel:

Thomas W. Riordon, Q.C., for the appellant;

Charles R. LeBlanc, for the respondents.

This appeal was heard before La Forest and Angers, JJ.A., and Jean, J.C. Q.B. (ad hoc), of the New Brunswick Court of Appeal on February 22, 1984. The decision of the Court of Appeal was delivered on February 25, 1985 by Angers, J.A.