DeWitt Estate, Re, 2004 NBPC 377

• Judge: Russell, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: October 21, 2004
• Jurisdiction: New Brunswick
• Citations: 2004 NBPC 377;(2004), 276 N.B.R.(2d) 53 (TD)

DeWitt Estate, Re (2004), 276 N.B.R.(2d) 53 (TD);

 276 R.N.-B.(2e) 53; 724 A.P.R. 53

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Temp. Cite: [2004] N.B.R.(2d) TBEd. OC.037

Renvoi temp.: [2004] N.B.R.(2d) TBEd. OC.037

Robert David Lindsay DeWitt (applicant) v. Carol Williams, Mary Ann DeWitt and Patricia Nason (respondents)

(F/P/45/02; 2004 NBPC 377)

Indexed As: DeWitt Estate, Re

Répertorié: DeWitt Estate, Re

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Fredericton

Russell, J.

October 21, 2004.

Summary:

Résumé:

This probate matter came before the court because of an order that stated in part as follows: "This matter is hereby removed in to the Court of Queen's Bench of New Brunswick, Trial Division". The sole issue was whether a January 11, 2001 will made by the late Alvin DeWitt should be admitted to probate.

The New Brunswick Court of Queen's Bench, Trial Division, ruled that the will should not be admitted to probate because of undue influence.

Wills - Topic 302

Testamentary capacity - General principles - What constitutes - The New Brunswick Court of Queen's Bench, Trial Division, ruled that while the circumstances surrounding the execution of the testator's will were "somewhat suspicious" because the will was a marked departure from the previous one, the testator, a chronic alcoholic, had testamentary capacity on the day he made the will - There was no evidence that he was under the influence of alcohol - The testator's doctor testified that when he was not under the influence of alcohol, he was capable of making such decisions - All of the witnesses testified that the testator was mentally sharp and alert during that period of time when he was not affected by alcohol - See paragraphs 7 to 34.

Wills - Topic 1704

Preparation and execution - Undue influence - What constitutes - General - In 1986, Alvin DeWitt made a will providing that his three daughters and his son Robert would share equally in the residue of the estate - In 1996, Alvin suffered a stroke which rendered him "physically and mentally incapable of caring for himself or managing his affairs" - Robert's ex-wife, Ellen, became Alvin's caregiver - Alvin relied totally on Robert for advice on everyday financial matters - In 2001, Alvin made a will giving each daughter $20,000 and the residue of the estate to Robert - The estate was allegedly worth between $600,000 and $800,000 - The New Brunswick Court of Queen's Bench, Trial Division, declined to admit the will to probate because of undue influence - The court accepted evidence, from independent home care workers who relieved Ellen, that Ellen was mentally abusing Alvin - The court accepted as factual that Alvin told one worker that Ellen kept him up all night to get him to marry her - Just before his death, Alvin believed that Robert would divide the estate's residue equally - The 2001 will did not reflect those wishes - Alvin's mind was overborne by pressure exerted by Ellen and Robert knowing or leading Alvin to believe that he was totally dependent on them - See paragraphs 7 to 23, 35 to 43.

Testaments - Cote 302

Capacité testamentaire - Principes généraux - Éléments constitutifs - [Voir Wills - Topic 302 ].

Testaments - Cote 1704

Préparation et exécution - Abus d'influence - Éléments constitutifs - Généralités - [Voir Wills - Topic 1704 ].

Cases Noticed:

Marsh Estate, Re (1990), 99 N.S.R.(2d) 221; 270 A.P.R. 221 (Prob. Ct.), consd. [para. 24].

Vout v. Hay - see Hay Estate, Re.

Hay Estate, Re, [1995] 2 S.C.R. 876; 183 N.R. 1; 82 O.A.C. 161, consd. [para. 27].

Bradshaw Estate, Re (1988), 90 N.B.R.(2d) 194; 228 A.P.R. 194 (Prob. Ct.) refd to. [para. 28].

McKean Estate, Re (2000), 224 N.B.R.(2d) 321; 574 A.P.R. 321 (C.A.), consd. [para. 29].

Harmes v. Hinkson, [1946] 3 D.L.R. 497 (P.C.), consd. [para. 31].

Counsel:

Barbara Hughes Campbell, for the applicant;

Sherron J.L. Dickson, Q.C., for the respondents.

Russell, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Fredericton, heard this matter on March 2 and 3, and August 30 and 31, 2004, and delivered the following decision on October 21, 2004.