Fong Estate, Re, (2011) 306 N.S.R.(2d) 370 (ProbCt)

Court:Nova Scotia Probate Court
Case Date:June 01, 2011
Jurisdiction:Nova Scotia
Citations:(2011), 306 N.S.R.(2d) 370 (ProbCt);2011 NSSC 315
 
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Fong Estate, Re (2011), 306 N.S.R.(2d) 370 (ProbCt);

    968 A.P.R. 370

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Temp. Cite: [2011] N.S.R.(2d) TBEd. AU.024

In The Estate of Dannie Wing Fong, Deceased

Susan Komonen (applicant) v. Angela Fong, Lisa Fong, Wendy Jones Olson, Kim Jones Murray, Arlene Fong Skinner, Sarah Jane Fong, Diana Fong Goodwin, Susan Komonen, Karen Ali Jeffry, Jennifer Julia Fong, Dow Fong, George Fong, Jean Fong, Kay Fong Ali, Ann Fong Jones, Wayne Fong, William Fong, Mon Fong, Helen Fong and Dalhousie University (respondents)

(Hfx. No. 339024; 58572; 2011 NSSC 315)

Indexed As: Fong Estate, Re

Nova Scotia Probate Court

Smith, A.C.J.

August 15, 2011.

Summary:

After Fong's death in May 2010, a printed will form was found in his home. The will form began with the words "This is the Last Will and Testament of me, Dannie Wing Fong". The words "Dannie Wing Fong" were printed in pencil. Other portions of the document had also been completed in pencil. The back page of the document was dated July 2009 (a specific date was not given). The document was signed (in pencil) "Dannie Wing Fong". The signature was not witnessed. The applicant applied for an order pursuant to s. 8A of the Wills Act to determine the validity of the printed will form document as a testamentary instrument.

The Nova Scotia Probate Court dismissed the motion. The court was not satisfied that the document embodied Fong's testamentary intentions.

Wills - Topic 4

Testamentary instruments - General principles - What constitutes a testamentary disposition - [See Wills - Topic 1573 ].

Wills - Topic 1573

Preparation and execution - Formal validity - Curing of irregularity - After Fong's death in May 2010, a printed will form was found in his home - The will form began with the words "This is the Last Will and Testament of me, Dannie Wing Fong" - The words "Dannie Wing Fong" were printed in pencil - Other portions of the document had also been completed in pencil - The back page of the document was dated July 2009 (a specific date was not given) - The document was signed (in pencil) "Dannie Wing Fong" - The signature was not witnessed - The applicant applied for an order pursuant to s. 8A of the Wills Act to determine the validity of the printed will form document as a testamentary instrument - The Nova Scotia Probate Court dismissed the motion - Section 8A of the Wills Act provided the court with the power to grant relief from the formalities of the Act provided the court was satisfied that the document in question embodied the testamentary intentions of the deceased - The deceased's diaries, emails and other written communications gave valuable insight into the matter - The court was not satisfied that the document in question embodied Fong's testamentary intentions.

Wills - Topic 1574

Preparation and execution - Formal validity - Testamentary intention - [See Wills - Topic 1573 ].

Wills - Topic 1588

Preparation and execution - Formal validity - Evidence and proof - [See Wills - Topic 1573 ].

Cases Noticed:

Robitaille v. Robitaille Estate (2011), 303 N.S.R.(2d) 238; 957 A.P.R. 238; 2011 NSSC 203, refd to. [para. 20].

Bennett v. Toronto Trust Corp., [1958] S.C.R. 392, refd to. [para. 20].

Molinari v. Winfrey, [1961] S.C.R. 91, refd to. [para. 20].

Canada Permanent Trust Co. v. Bowman, [1962] S.C.R. 711, refd to. [para. 20].

Langseth Estate, Re (1990), 68 Man.R.(2d) 289 (C.A.), refd to. [para. 20].

Masters Estate, Re; Hill v. Plummer, [1994] 33 N.S.W.L.R. 446 (C.A.), refd to. [para. 20].

Hough v. Harris; Graham Estate, Re, [2004] NSWSC 958 (S.C., Equity Div.), refd to. [para. 20].

Lumb Estate, Re; McMillan v. Lumb, [2005] NSWSC 371 (S.C., Equity Div.), refd to. [para. 20].

MacKenzie v. Osburn, [2005] NSWSC 657 (S.C., Equity Div.), refd to. [para. 20].

George v. Daily et al. (1997), 115 Man.R.(2d) 27; 139 W.A.C. 27 (C.A.), refd to. [para. 20].

Belser v. Fleury (1999), 139 Man.R.(2d) 149 (Q.B.), refd to. [para. 20].

Prefontaine v. Arbuthnott et al. (2001), 154 Man.R.(2d) 75; 2001 MBQB 45, refd to. [para. 20].

Roelofs Estate, Re (2004), 206 Man.R.(2d) 9; 2004 MBQB 280, refd to. [para. 20].

Furlotte et al. v. McAllister et al. (2005), 289 N.B.R.(2d) 148; 753 A.P.R. 148; 2005 NBQB 310 (T.D.), refd to. [para. 20].

Statutes Noticed:

Wills Act, R.S.N.S. 1989, c. 505, sect. 8A [para. 18].

Counsel:

Timothy C. Matthews, Q.C., TEP for the applicant;

Blair Mitchell, for the respondent, Helen Fong.

This application was heard on June 1, 2011, in Halifax, N.S., before Smith, A.C.J., of the Nova Scotia Probate Court, who delivered the following decision on August 15, 2011.

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