Fawson Estate, Re, (2012) 313 N.S.R.(2d) 150 (SC)

JudgeHood, J.
CourtSupreme Court of Nova Scotia (Canada)
Case DateFebruary 06, 2012
JurisdictionNova Scotia
Citations(2012), 313 N.S.R.(2d) 150 (SC);2012 NSSC 55

Fawson Estate, Re (2012), 313 N.S.R.(2d) 150 (SC);

    990 A.P.R. 150

MLB headnote and full text

Temp. Cite: [2012] N.S.R.(2d) TBEd. FE.010

In The Estate Of Margaret Anne Fawson, Deceased;

 

And In The Matter Of the Proof in Solemn Form of the Last Will and Testament of Margaret Anne Fawson

(Hfx. No. 343070; 2012 NSSC 55)

Indexed As: Fawson Estate, Re

Nova Scotia Supreme Court

Hood, J.

February 6, 2012.

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 held that the will was invalid for lack of testamentary capacity. The doctrine of suspicious circumstances applied to rebut the presumption of testamentary capacity and the proponent of the will failed to discharge the burden of proving testamentary capacity on a balance of probabilities.

Wills - Topic 405

Testamentary capacity - Mental disabilities - Delusions - What constitutes - Affecting capacity - [See Wills - Topic 541 ].

Wills - Topic 541

Testamentary capacity - Evidence and proof - Doctrine of suspicious circumstances - Fawson died in December 2010, shortly after her mother died - Fawson's April 2004 will disinherited two of her three brothers - Fawson, who was 62 when she died, had always lived with her mother and cared for her in her later years - However, in 2001, the mother was found to be an adult in need of protection due to Fawson's neglect in her care (suffering from dementia, filthy living conditions, left alone all day, medical care not obtained and prescribed diabetes medication not obtained for three years) - One of the brothers was appointed the mother's guardian - After a period of costly home care, the mother was placed in a nursing home where she remained for eight years - Fawson was consumed with the irrational belief that her mother was physically and mentally fine and should be home with her, where she could provide proper care - Fawson believed that her brothers conspired with others to take her mother from her and to put her in a nursing home to die quickly so that they could benefit financially - Fawson accused her brothers of murdering their mother - Fawson constantly interfered with those caring for her mother - Apart from her dealings with her brothers and mother, Fawson's public life appeared to function normally, as friends and co-workers testified to - There was expert evidence that one could be delusional in one aspect of life while maintaining the appearance of normalcy in other aspects - One of the brothers challenged the validity of the will - The Nova Scotia Supreme Court held that the brother presented evidence that Fawson's belief that her mother was not suffering from dementia and that the brothers were conspiring to kill her for financial gain was delusional and that the delusion affected her testamentary capacity - Accordingly, the doctrine of suspicious circumstances applied to rebut the presumption that Fawson had testamentary capacity when she executed her will, leaving the will's proponent to establish testamentary capacity on a balance of probabilities - The court, after considering all of the evidence, held that the will's proponent failed to prove on a balance of probabilities that Fawson possessed testamentary capacity when she executed her will in 2004.

Cases Noticed:

Banks v. Goodfellow (1870), L.R. 5 Q.B. 549 (Q.B.), refd to. [para. 193].

Marsh Estate, Re (1990), 99 N.S.R.(2d) 221; 270 A.P.R. 221 (Prob. Ct), affd. (1991), 104 N.S.R.(2d) 266; 283 A.P.R. 266 (C.A.), refd to. [para. 195].

Hay Estate, Re, [1995] 2 S.C.R. 876; 183 N.R. 1; 82 O.A.C. 161, refd to. [para. 196].

Vout v. Hay - see Hay Estate, Re.

Keddy Estate, Re, 2002 CarswellNS 451 (Prob. Ct.), refd to. [para. 199].

Willis Estate, Re (2009), 280 N.S.R.(2d) 87; 891 A.P.R. 87; 2009 NSSC 231, refd to. [para. 200].

Nieuwland v. Yorke Estate (2011), 298 N.S.R.(2d) 203; 945 A.P.R. 203; 2011 NSSC 19, refd to. [para. 202].

Scott v. Cousins, [2001] O.J. No. 19 (Sup. Ct.), refd to. [para. 204].

Royal Trust Corp. of Canada v. Saunders et al., [2006] O.T.C. 513; 2006 CanLII 19424 (Sup. Ct.), refd to. [para. 209].

Authors and Works Noticed:

Feeney, Thomas G., The Canadian Law of Wills (4th Ed. 2000) (Looseleaf), §§ 2.15 [para. 203]; 2.19, 2.25 [para. 202].

Theobold on Wills (16th Ed. 2001), paras. 3-02 [para. 207]; 3-03 [para. 208].

Counsel:

Keith MacKay, for the applicant, James Fawson;

Kent Clarke, for the Estate of Margaret Fawson;

Patrick Fawson, self-represented;

Frank Fawson, self-represented.

This application was heard on June 20-22, 27, and August 8-9, 2011, at Halifax, N.S., before Hood, J., of the Nova Scotia Supreme Court, who delivered the following judgment on February 6, 2012.

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    ...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......
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10 cases
  • Laszlo et al. v. Lawton et al., [2013] B.C.T.C. Uned. 305 (SC)
    • Canada
    • Supreme Court of British Columbia (Canada)
    • 27 Febrero 2013
    ...Smith v. Tebbett (1867), L.R. 1 P. & D. 354 at 398; Kri v. Patterson , [1989] O.J. No. 1817 (Surr. Ct.); Fawson Estate (Re) , 2012 NSSC 55; Moore v. Drummond , 2012 BCSC 170 at para. 47 [ Moore ]; Coleman v. Coleman , 2008 NSSC 396 [ Coleman ]. [191] To lack testamentary capacity does n......
  • Devlin Estate (Re),
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    • Court of Appeal of Nova Scotia (Canada)
    • 28 Abril 2022
    ...Smee; Halsbury, 2nd Ed., Vol. 2, p. 38. [15]        The application judge referred to Re Fawson Estate, 2012 NSSC 55 with respect to the test for testamentary capacity and in particular quoted from paragraphs 208 and 209 regarding insane delusions: [208]&#......
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    • Canada
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    ...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......
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