Fawson Estate, Re, 2016 NSCA 39

• Judge: Farrar, Scanlan and Bourgeois, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: May 19, 2016
• Jurisdiction: Nova Scotia
• Citations: 2016 NSCA 39;(2016), 373 N.S.R.(2d) 390 (CA)

Fawson Estate, Re (2016), 373 N.S.R.(2d) 390 (CA);

    1175 A.P.R. 390

MLB headnote and full text

Temp. Cite: [2016] N.S.R.(2d) TBEd. MY.031

Francis John Fawson, as the Personal Representative of the Estate of Margaret Anne Fawson, Deceased (appellant) v. Sandra Marie Deveau, Patrick Joseph Fawson, James Robert Fawson and James Robert Fawson as the Personal Representative of the Estate of Theresa Rose Fawson, Deceased (respondents)

(CA 445146; 2016 NSCA 39)

Indexed As: Fawson Estate, Re

Nova Scotia Court of Appeal

Farrar, Scanlan and Bourgeois, JJ.A.

May 19, 2016.

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, in a judgment reported (2015), 367 N.S.R.(2d) 15; 1157 A.P.R. 15, 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. One of the plaintiffs appealed.

The Nova Scotia Court of Appeal dismissed the appeal. The trial judge properly identified and applied the test for summary judgment. There was no error in finding that issue estoppel did not apply and there remained a genuine issue for 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 trial judge 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 - The Nova Scotia Court of Appeal held that the trial judge properly identified and applied the test for summary judgment - There was no error in finding that issue estoppel did not apply and there remained a genuine issue for trial - See paragraphs 14 to 30.

Practice - Topic 5708

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

Counsel:

Keith MacKay, for the appellant;

Kent Clarke, for the respondent, Sandra Marie Deveau;

Patrick Joseph Fawson, respondent, in person;

James Robert Fawson, respondent, in person.

This appeal was heard on April 12, 2016, at Halifax, N.S., before Farrar, Scanlan and Bourgeois, JJ.A., of the Nova Scotia Court of Appeal.

On May 19, 2016, Farrar, J.A., delivered the following judgment for the Court of Appeal.