Fergusson's Will, Re; Fergusson and Fergusson v. Fergusson, (1981) 43 N.S.R.(2d) 89 (CA)

• Judge: Cooper, Jones and Macdonald, JJ.A.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: January 26, 1981
• Jurisdiction: Nova Scotia
• Citations: (1981), 43 N.S.R.(2d) 89 (CA)

Fergusson's Will, Re (1981), 43 N.S.R.(2d) 89 (CA);

    81 A.P.R. 89

MLB headnote and full text

Re Fergusson's Will; Fergusson and Fergusson v. Fergusson

(No. 00628)

Indexed As: Fergusson's Will, Re; Fergusson and Fergusson v. Fergusson

Nova Scotia Supreme Court

Appeal Division

Cooper, Jones and Macdonald, JJ.A.

January 26, 1981.

Summary:

This case arose out of an application for proof in solemn form of a will. The Nova Scotia Probate Court in a judgment reported, 40 N.S.R.(2d) 223; 73 A.P.R. 223, dismissed the application and held that the testator lacked testamentary capacity. The proponents of the will appealed.

The Nova Scotia Court of Appeal dismissed the appeal.

Evidence - Topic 8

Question of fact - What constitutes - Testamentary capacity - The Nova Scotia Court of Appeal held that the question of testamentary capacity is one of fact, not law - See paragraph 15.

Practice - Topic 8800

Appeals - Duty of appeal court regarding findings of fact by trial judge - The Nova Scotia Court of Appeal refused to disturb the finding by a trial judge that a dying man lacked testamentary capacity when he signed his will, where the trial judge made no palpable and overriding error which affected his assessment of the facts.

Wills - Topic 409

Testamentary capacity - Mental disabilities - Confused state of mind - A testator, aged 68, was hospitalized for a terminal illness on September 5, 1978, in a confused state of mind - Medical testimony established that the testator's state of mind did not improve and was in a particularly bad state on September 16, when he executed a will prepared by his relatives after discussion with him - He died on September 20 - The Nova Scotia Court of Appeal affirmed the judgment of the trial judge that the testator lacked testamentary capacity, because he did not understand what was being done respecting his will while he was in the hospital.

Cases Noticed:

Perera v. Perera, [1901] A.C. 354, appld. [para. 15].

Stein v. The Ship "Kathy K", [1976] 2 S.C.R. 802; 4 N.R. 381, appld. [para. 15].

Lewis v. Todd and McClure (1980), 34 N.R. 1, appld. [para. 15].

Jeans v. Carl B. Potter Limited (1977), 24 N.S.R.(2d) 106; 35 A.P.R. 106, appld. [para. 15].

Parker v. Felgate (1883), 8 P.D. 171, appld. [para. 25].

Re McPhee (1966), 52 D.L.R. 520, appld. [para. 26].

Counsel:

James S. Cowan and David S. Green, for the appellants;

Bruce M. Nickerson, Q.C., and Elizabeth Roscoe, for the respondent.

This case was heard on October 8, 1980, at Halifax, Nova Scotia, before COOPER, JONES and MACDONALD, JJ.A., of the Nova Scotia Supreme Court Appeal Division.

On January 26, 1981, COOPER, J.A., delivered the following judgment for the Appeal Division: