Collicutt Estate, Re, (1994) 128 N.S.R.(2d) 81 (ProbCt)

• Judge: Carver, J.
• Court: Probate Court of Nova Scotia (Canada)
• Case Date: September 23, 1993
• Jurisdiction: Nova Scotia
• Citations: (1994), 128 N.S.R.(2d) 81 (ProbCt)

Collicutt Estate, Re (1994), 128 N.S.R.(2d) 81 (ProbCt);

  359 A.P.R. 81

MLB headnote and full text

In The Matter Of the Estate of Mildred Louise Collicutt, deceased;

And In The Matter Of A Proof in Solemn Form Hearing concerning the Last Will and Testament of Mildred Louise Collicutt, dated the 9th day of October, 1988.

(Probate File No. 10,880)

Indexed As: Collicutt Estate, Re

Nova Scotia Probate Court

Carver, J.

January 11, 1994.

Summary:

The executrix applied to have a probated will proven in solemn form. The mental competency of the testatrix was challenged.

The Nova Scotia Probate Court held that it was not proved that the testatrix had testa­mentary capacity. The court ordered that probate of the will be revoked.

Barristers and Solicitors - Topic 1686

Relationship with client - Preparation of wills - Duty to test capacity of testator - The Nova Scotia Probate Court set out the duty of a lawyer in taking instructions for a will - The lawyer did not inquire into the 85 year old testatrix's mental capacity, did not inquire about former wills which evidenced a dramatic change in bequests, did not inquire into her medical condition and spoke with her only for a short time - The lawyer did not attend on execution of the will, but gave the will to the sole beneficiary to have executed - The court stated that "if there were ever a time for a lawyer to be present, this was the time" - See paragraphs 67 to 69.

Wills - Topic 305

Testamentary capacity - Requirement that testator understand what is being done - An 85 year old testatrix made wills in 1982 and 1985 making specific bequests to friends and relatives and leaving the resi­due to charity - In 1988, the testatrix executed a new will, naming a neighbour as sole beneficiary and executrix - The testatrix did not comprehend the extent of her property - She had over $200,000 in the bank, yet worried that she would be thrown out of the nursing home because she could not pay to be there - The sole beneficiary's involvement in preparing the new will was suspicious - The lawyer drafting the will did not properly inquire into the testatrix's mental capacity - The Nova Scotia Probate Court held that the propounder of the will failed to prove testamentary capacity - The court was not satisfied that the testatrix knew and approved of the contents of her will.

Wills - Topic 534

Testamentary capacity - Evidence and proof - Onus of proof - The Nova Scotia Probate Court stated that the onus in a hearing for proof of a will in solemn form was "if there is no evidence of incapacity, the will must be probated for every person is presumed sane; but once the will is attacked, whether it has been admitted to probate in common form or not, the bur­den of proof of testamentary capacity is on the executor or other persons who pro­pound the will for probate. The burden of proof is the same whether the application to prove the will in solemn form was made before or after it was admitted to probate. The onus is on the propounder to establish, on a balance of probabilities, testamentary capacity." - See paragraph 50.

Wills - Topic 541

Testamentary capacity - Evidence and proof - Doctrine of suspicious circum­stances - [See Wills - Topic 305 ].

Cases Noticed:

Leger v. Poirier, [1944] 3 D.L.R. 1 (S.C.C.), refd to. [para. 52].

Griffin's Estate, Re (1979), 21 Nfld. & P.E.I.R. 21; 56 A.P.R. 21 (P.E.I.C.A.), refd to. [para. 53].

Russell v. Fraser (1980), 8 E.T.R. 245 (B.C.C.A.), refd to. [para. 54].

Kaufman, Re, 27 D.L.R.(2d) 178 (Ont. C.A.), refd to. [para. 59].

Friesen and Holmberg v. Friesen Estate (1985), 33 Man.R.(2d) 98 (Q.B.), refd to. [para. 67].

Murphy v. Lamphier (1914), 31 O.L.R. 287 (Ch.), refd to. [para. 68].

Authors and Works Noticed:

Feeney, Thomas G., Canadian Law of Wills (3rd Ed.), pp. 23 to 30 [para. 23]; 31 [para. 56]; 32 to 36 [para. 23]; 37 [para. 51]; 38 [para. 23].

Counsel:

Walton W. Cook, Q.C., for Hazel Knickle;

Patrick A. Burke, for Peter John Haughn and Nancy Haughn.

This application was heard at Bridgewater, N.S., on September 23, 1993, before Carver, J., of the Nova Scotia Probate Court, who delivered the following judgment on January 11, 1994.