Fergusson, Re, (1980) 40 N.S.R.(2d) 223 (ProbCt)

Judge:O Hearn, J.
Court:Nova Scotia Probate Court
Case Date:January 21, 1980
Jurisdiction:Nova Scotia
Citations:(1980), 40 N.S.R.(2d) 223 (ProbCt)

Fergusson, Re (1980), 40 N.S.R.(2d) 223 (ProbCt);

    73 A.P.R. 223

MLB headnote and full text

Re Fergusson

(No. 35346)

Indexed As: Fergusson, Re

Nova Scotia Probate Court

O Hearn, J.

January 21, 1980.


This headnote contains no summary.

Wills - Topic 409

Testamentary capacity - Mental disabilities - Confused state of mind - A testator, age 68, was hospitalized on September 5, 1978, in a confused state of mind - The testator signed a will while in the hospital on September 16, 1978 - The testator died on September 20, 1978 - The Nova Scotia Probate Court dismissed an application for proof of the will in solemn form and set aside the probate granted in common form - The Probate Court stated that the testator did not recover from his confused state of mind which existed on his admission to the hospital (see paragraph 120) - The Probate Court stated that the testator did not have an understanding of what was being done respecting his will while he was in the hospital.

Wills - Topic 305

Testamentary capacity - General principles - Requirement that a testator understand what is being done - The Nova Scotia Probate Court stated that a testator must understand what is being done and that it is not enough to show verbal agreement by a testator to a suggested plan (see paragraph 117).

Wills - Topic 534

Testamentary capacity - Evidence, onus of proof - The Nova Scotia Probate Court stated that the burden of proof of testamentary capacity is on the proponents of a will (see paragraph 99).

Barristers and Solicitors - Topic 1608

Relationship with client - Conflict of interest, resulting from lawyer's relations - The Nova Scotia Probate Court stated that the propriety of a lawyer acting as legal advisor to close relatives is questionable - The Probate Court stated that every legal advisor has a duty to provide his client with disinterested advice (see paragraph 104).

Cases Noticed:

In the Estate of Bohrmann, Caesar and Watmough v. Bohrmann, [1938] 1 O.E.R. 271, refd to. [para. 112].

Billinghurst v. Vickers (1810), 1 Phill. Ecc. 187; 1 E.R. 956, refd to. [para. 112].

Wood v. Wood (1811), 1 Phill. Ecc. 357; 161 E.R. 1010, refd to. [para. 112].

Parker v. Felgate (1883), 8 P.D. 171, refd to. [para. 113].

Re Seabrook; Dunne v. Dundas et al. (1978), 4 E.T.R. 135, refd to. [para. 114].

Leger v. Poirier, [1944] 3 D.L.R. 1 (S.C.C.), refd to, [para. 117].

Authors and Works Noticed:

Annual Statement of the General Council of the Bar 1955, p. 21 [para. 104].


James S. Cowan, for the executors named in the will;

B.M. Nickerson, Q.C., and Mrs. Elizabeth Roscoe, for Hilda Evelyn Fergusson;

Merlin Nunn, and John Arnold, for the infant beneficiaries under the will.

This case was heard by O HEARN, J., of the Nova Scotia Probate Court. The judgment of O HEARN, J., was delivered on January 21, 1980.

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