Coleman v. Coleman Estate, 2008 NSSC 396

• Judge: Warner, J.
• Court: Probate Court of Nova Scotia (Canada)
• Case Date: May 09, 2008
• Jurisdiction: Nova Scotia
• Citations: 2008 NSSC 396;(2008), 272 N.S.R.(2d) 347 (ProbCt)

Coleman v. Coleman Estate (2008), 272 N.S.R.(2d) 347 (ProbCt);

    869 A.P.R. 347

MLB headnote and full text

Temp. Cite: [2009] N.S.R.(2d) TBEd. JA.006

Gary Coleman (applicant) v. Estate of Jessie May Coleman (respondent)

(Probate File No. 11990; 2008 NSSC 396)

Indexed As: Coleman v. Coleman Estate

Nova Scotia Probate Court

Warner, J.

December 31, 2008.

Summary:

The testatrix died in March 2007 at age 99. Her June 2005 will left her estate to her daughter Kaye and her grandson Bill, who resided with her. Kaye died one month after the testatrix, leaving her estate to Bill. The June 2005 will, initiated by Bill secretly taking the testatrix to a young lawyer other than the lawyer who represented the family for years, replaced a March 2000 will that equally divided the estate between the testatrix's two children (Ron and Kaye). Ron, who died in July 2005, had spent approximately $250,000 over the years for full-time nursing care so that the testatrix could remain in her home. The testatrix's other grandson (Ron's son Gary) contested the validity of the June 2005 will on the grounds of lack of testamentary capacity and undue influence by Bill.

The Nova Scotia Probate Court held that the June 2005 will was invalid for want of testamentary capacity. It was unnecessary to determine whether the will was invalid because of undue influence by the grandson Bill.

Wills - Topic 303

Testamentary capacity - General principles - Tests for determining capacity - The Nova Scotia Probate Court referred to the following test for determining testamentary capacity: "a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made" - See paragraph 18.

Wills - Topic 412

Testamentary capacity - Mental disabilities - Disorder of the mind (incl. Alzheimer's disease) - The testatrix died in March 2007 at age 99 - Her June 2005 will left her estate to her daughter Kaye and her grandson Bill, who resided with her - Kaye died one month after the testatrix, leaving her estate to Bill - The June 2005 will, initiated by Bill secretly taking the testatrix to a young lawyer other than the lawyer who represented the family for years, replaced a March 2000 will that equally divided the estate between the testatrix's two children (Ron and Kaye) - Ron, who died in July 2005, had spent approximately $250,000 over the years for full-time nursing care so that the testatrix could remain in her home - The testatrix's other grandson (Ron's son Gary) contested the validity of the June 2005 will on the ground of lack of testamentary capacity - The Nova Scotia Probate Court held that the June 2005 will was invalid for want of testamentary capacity - On the basis of the medical and lay evidence, the court found that the testatrix "did not know the extent and value of her assets or obligations, nor the names and status of family members who would normally be expected to benefit, nor much else of her current circumstances" - The testatrix was diagnosed with progressive dementia well before she executed the June 2005 will - Medical witnesses called in support of testamentary capacity conducted only superficial inquiries before concluding that the testatrix had testamentary capacity - Absent sufficient facts, their opinions were not reliable or trustworthy - The testatrix "did not have the cognitive capacity to understand the nature of making a will or its effects, she did not understand the particulars of her property to the extent of understanding what she was disposing of, and she did not comprehend and appreciate the claims to which she ought to give effect" - See paragraphs 58 to 130.

Wills - Topic 540

Testamentary capacity - Evidence and proof - Expert opinions - Weight to be given to - The proponent of a will called psychiatric evidence in support of the testatrix's testamentary capacity - The Nova Scotia Probate Court rejected the evidence as not reliable or trustworthy - The psychiatrist conducted a brief, superficial inquiry into the 99 year old testatrix's mental capacity, without obtaining or considering any of the available medical information (mental and physical health) that affected her cognitive abilities - There was no inquiry to determine whether the testatrix understood the full nature and value of her property or who her natural inheritors were - The expert obtained insufficient facts to make reliable conclusions on the testatrix's testamentary capacity - See paragraphs 97 to 111.

Wills - Topic 1704

Preparation and execution - Undue influence - What constitutes - General - The Nova Scotia Probate Court stated that "while the presumption of testamentary capacity, and of knowledge and approval/appreciation, may be exhausted by evidence of suspicious circumstances, thereby placing an evidentiary burden on the proponent of the will, the burden of proof of undue influence (and of mistake based on fraud) is always on the party challenging the will to prove that the mind of the testator was overborne by the influence exerted by another person such that there was no voluntary approval of the contents of the will. The burden is a civil burden on a balance of probabilities. ... To set aside a will on the ground of undue influence, the challenger must establish that the influence was so great and overpowering that the will reflects the intent of the beneficiary and not the testator. To establish such coercion does not necessitate establishment of physical violence or confinement or threats but on the other hand mere influence by itself is not sufficient. The test is whether in all of the circumstances the testator did not have an independent mind that could withstand the competing influences." - See paragraphs 48 to 50.

Cases Noticed:

Hay Estate, Re, [1995] 2 S.C.R. 876; 183 N.R. 1; 82 O.A.C. 161, refd to. [para. 14].

Barry v. Boutlin (1838), 12 E.R. 1089 (P.C.), refd to. [para. 14].

Leger et al. v. Poirier, [1944] S.C.R. 152, refd to. [para. 15].

McGregor v. Ryan, [1965] S.C.R. 757, refd to. [para. 15].

Banks v. Goodfellow (1870), L.R. 5 Q.B. 549 (Q.B.), refd to. [para. 18].

Field v. James et al. (1999), 15 B.C.T.C. 341; 1999 CarswellBC 1365 (S.C.), refd to. [para. 19].

Keddy Estate, Re, [2003] N.S.R.(2d) Uned. 52; 2003 NSCA 55, refd to. [para. 20].

Fergusson's Will, Re (1981), 43 N.S.R.(2d) 89; 81 A.P.R. 89; 1980 CarswellNS 175 (C.A.), refd to. [para. 20].

Ramsay Estate, Re, [2004] N.S.R.(2d) Uned. 81; 2004 NSSC 140, refd to. [para. 20].

Muise Estate, Re, [2002] N.S.R.(2d) Uned. 37; 2002 NSSC 131, refd to. [para. 20].

Seabrook Estate, Re (1978), 4 E.T.R. 135 (Ont. Surr. Ct.), refd to. [para. 24].

Murphy v. Lamphier (1914), 31 O.L.R. 287, refd to. [para. 24].

Sharp v. Adam, [2004] E.W.C.A. Civ. 449 (Eng. C.A.), refd to. [para. 25].

Banton v. Banton et al. (1998), 66 O.T.C. 161 (Gen. Div.), refd to. [para. 55].

Ostrander v. Black, [1996] O.J. No. 1372 (Gen. Div.), refd to. [para. 55].

Craig v. Lamoureux, [1920] A.C. 349, refd to. [para. 57].

Authors and Works Noticed:

Burns, Fiona, Reforming Testamentary Undue Influence in Canadian and English Law (2006), 29 Dal. L.J. 455, generally [para. 28].

Feeney, Thomas G., The Canadian Law of Wills (4th Ed. 2000) (2008 Looseleaf Update, Release 19), c. 2.32 [para. 17]; 2.4 [para. 35]; 2.5 [para. 40]; 3.4 [para. 45]; 3.7 [para. 49]; 3.10 to 3.14 [para. 50]; 3.12 [para. 50]; 3.16 [para. 44].

Howlett, David A., Estate Matters in Atlantic Canada (1999), p. 176 [para. 30].

Hull, Ian M., Challenging the Validity of Wills (1996), pp. 19, 24 [para. 23].

Hull, Rodney, Lest We Forget Banks v. Goodfellow (2007), 31 E.T.R.(3d) 15, generally [para. 40].

Counsel:

Walter O. Newton, Q.C., and Jonathan Cuming, for the applicant, Gary Coleman;

Daniel Oulton, proctor for the Estate of Jessie May Coleman and the Estate of her daughter Kathleen Gould;

William H. Clarke, residual beneficiary under the contested will, self-represented.

This matter was heard on March 25 and 26, April 14, and May 9, 2008, before Warner, J., of the Nova Scotia Probate Court, who delivered the following judgment on December 31, 2008.