Collicutt Estate, Re, (1994) 134 N.S.R.(2d) 137 (CA)

• Judge: Chipman, Roscoe and Pugsley, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: October 04, 1994
• Jurisdiction: Nova Scotia
• Citations: (1994), 134 N.S.R.(2d) 137 (CA)

Collicutt Estate, Re (1994), 134 N.S.R.(2d) 137 (CA);

  383 A.P.R. 137

MLB headnote and full text

In The Matter Of the Estate of Mildred Louise Collicutt.

Hazel Knickle, Executrix of and under the Last Will and Testament of Mildred Collicutt (appellant) v. Peter J. Haughn and Nancy Haughn (respondents)

(C.A. No. 100897)

Indexed As: Collicutt Estate, Re

Nova Scotia Court of Appeal

Chipman, Roscoe and Pugsley, JJ.A.

October 4, 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, in a judg­ment reported 128 N.S.R.(2d) 81; 359 A.P.R. 81, held that it was not proved that the testatrix had testamentary capacity. The court ordered that probate of the will be revoked. The executrix appealed.

The Nova Scotia Court of Appeal dis­missed the appeal.

Barristers and Solicitors - Topic 1686

Relationship with client - Preparation of wills - Duty to test capacity of testator - [See Wills - Topic 305 ].

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 - The Nova Scotia Court of Appeal affirmed the decision.

Wills - Topic 541

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

Counsel:

Walton W. Cook, Q.C., and Timothy Reid, for the appellant;

Patrick A. Burke, for the respondents.

This appeal was heard on October 4, 1994, before Chipman, Roscoe and Pugsley, JJ.A., of the Nova Scotia Court of Appeal.

On October 4, 1994, Chipman, J.A., delivered the following judgment orally for the Court of Appeal.