Fawson Estate, Re, (2015) 367 N.S.R.(2d) 15 (SC)

• Judge: Coughlan, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: September 17, 2015
• Jurisdiction: Nova Scotia
• Citations: (2015), 367 N.S.R.(2d) 15 (SC);2015 NSSC 355

Fawson Estate, Re (2015), 367 N.S.R.(2d) 15 (SC);

    1157 A.P.R. 15

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. DE.030

James Robert Fawson, James Robert Fawson as the personal representative of the Estate of Theresa Rose Fawson, deceased, and Francis John Fawson as the personal representative of the Estate of Margaret Anne Fawson, deceased (plaintiffs) v. Sandra Marie Deveau and Patrick Joseph Fawson (defendants)

(Hfx. No. 412751; 2015 NSSC 355)

Indexed As: Fawson Estate, Re

Nova Scotia Supreme Court

Coughlan, J.

September 17, 2015.

Summary:

Fawson died in December 2010. Her April 2004 will disinherited two of her three brothers. One of the disinherited brothers applied to have the will proved in solemn form. He claimed that because of Fawson's delusions about their mother's health and the two brothers' care of her, Fawson lacked testamentary capacity when she executed her will.

The Nova Scotia Supreme Court, in a judgment reported (2012), 313 N.S.R.(2d) 150; 990 A.P.R. 150, held that the will was invalid for lack of testamentary capacity. The doctrine of suspicious circumstances applied to rebut the presumption of testamentary capacity. The appointed executor (Deveau) failed to discharge the burden of proving testamentary capacity on a balance of probabilities. Fawson had also designated Deveau and the third brother as beneficiaries of her pension and RRSPs. The plaintiffs applied to challenge the validity of those designations for want of capacity. The plaintiffs applied for summary judgment, arguing that Fawson's capacity to make the designations was subject to issue estoppel, as her capacity had already been adversely determined in the prior wills action (i.e., no material fact requiring a trial).

The Nova Scotia Supreme Court denied summary judgment. Issue estoppel did not apply. The prior determination of a lack of testamentary capacity at the time of making Fawson's will was not determinative of her capacity when she made the beneficiary designations. There was no evidence respecting when and how the beneficiary designations were made. That issue was not dealt with in the wills action. Whether Fawson had capacity to make the beneficiary designations, at the time she made them, was a genuine issue requiring a trial.

Estoppel - Topic 386

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Issues decided in prior proceedings - Fawson died in December 2010 - Her April 2004 will disinherited two of her three brothers - One of the disinherited brothers applied to have the will proved in solemn form - He claimed that because of Fawson's delusions about their mother's health and the two brothers' care of her, Fawson lacked testamentary capacity when she executed her will - The trial judge held that the will was invalid for lack of testamentary capacity - The doctrine of suspicious circumstances applied to rebut the presumption of testamentary capacity - The appointed executor (Deveau) failed to discharge the burden of proving testamentary capacity on a balance of probabilities - Fawson had also designated Deveau and the third brother as beneficiaries of her pension and RRSPs - The plaintiffs applied to challenge the validity of those designations for want of capacity - The plaintiffs applied for summary judgment, arguing that Fawson's capacity to make the designations was subject to issue estoppel, as her capacity had already been adversely determined in the prior wills action (i.e., no material fact requiring a trial) - The Nova Scotia Supreme Court denied summary judgment - Issue estoppel did not apply - The prior determination of a lack of testamentary capacity at the time of making Fawson's will was not determinative of her capacity when she made the beneficiary designations - There was no evidence as to when instructions were given or when the beneficiary designations were made - Whether Fawson had capacity to make the beneficiary designations, at the time she made them, was a genuine issue requiring a trial.

Practice - Topic 5708

Judgments and orders - Summary judgments - Bar to application - Existence of issue to be tried - [See Estoppel - Topic 386 ].

Cases Noticed:

Coady v. Burton Canada Co. et al. (2013), 333 N.S.R.(2d) 348; 1055 A.P.R. 348; 2013 NSCA 95, refd to. [para. 3].

Fawson Estate, Re (2012), 313 N.S.R.(2d) 150; 990 A.P.R. 150; 2012 NSSC 55, refd to. [para. 7].

Counsel:

Keith MacKay, for the plaintiffs, James Robert Fawson, James Robert Fawson as the personal representative of the Estate of Theresa Rose Fawson, deceased, and Francis Jospesh Fawson, as the personal representative of the Estate of Margaret Anne Fawson, deceased;

Clarke N. Kent, for the defendant, Sandra Marie Deveau;

Patrick Joseph Fawson, self-represented.

This application was heard on September 16-17, 2015, at Halifax, N.S., before Coughlan, J., of the Nova Scotia Supreme Court, who delivered the judgment orally on September 17, 2015, with written reasons released on December 10, 2015.