Greene et al. v. King et al., (2006) 307 N.B.R.(2d) 11 (TD)

• Judge: Paul S. Creaghan, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: October 27, 2006
• Jurisdiction: New Brunswick
• Citations: (2006), 307 N.B.R.(2d) 11 (TD);2006 NBQB 367

Greene v. King (2006), 307 N.B.R.(2d) 11 (TD);

    307 R.N.-B.(2e) 11; 795 A.P.R. 11

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Temp. Cite: [2006] N.B.R.(2d) TBEd. DE.010

Renvoi temp.: [2006] N.B.R.(2d) TBEd. DE.010

Gretchen Greene, Sandra MacDonald and George Carter (plaintiffs) v. Mary King, Nancy Blakney and Keith Carter (defendants)

(M/C/0831/05; 2006 NBQB 367; 2006 NBBR 367)

Indexed As: Greene et al. v. King et al.

Répertorié: Greene et al. v. King et al.

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Moncton

Paul S. Creaghan, J.

October 27, 2006.

Summary:

Résumé:

A 77 year old terminally ill mother urgently drafted a will to equitably dispose of her estate, including over 70 properties, between her six children. The properties were bundled into six packages in a crude attempt to equalize the value, although time constraints resulted in some property being omitted and incorrect values assigned to the properties. Each child drew a package and the will reflected the result. Although all children were initially satisfied, after the mother's death, disputes arose because properties had been omitted and the packages were unequally valued. Three of the children challenged the validity of the will.

The New Brunswick Court of Queen's Bench, Trial Division, held that the will was invalid. Although the mother had testamentary capacity when she executed the will, proponents of the will failed to prove that the mother had knowledge and approval of the contents of the will.

Wills - Topic 1504

Preparation and execution - General - Requirement of knowledge of contents - A 77 year old terminally ill mother urgently drafted a will to equitably dispose of her estate, including over 70 properties, between her six children - The properties were bundled into six packages by property identifier number (PID) in a crude attempt to equalize the value, although time constraints resulted in properties being omitted and incorrect values assigned to the properties - Each child drew a package and the will reflected the result - Although all children were initially satisfied, after the mother's death, disputes arose because properties had been omitted and the packages were unequally valued - Three children challenged the validity of the will - The New Brunswick Court of Queen's Bench, Trial Division, held that the will was invalid - Although the mother had testamentary capacity when she executed the will, proponents of the will failed to prove that she knew and approved of the contents of the will - Omitted properties of considerable value fell into the residue of the estate, contrary to the mother's intention - The mother had no knowledge of which properties, identified only by their PID, were included in the six packages.

Testaments - Cote 1504

Préparation et exécution - Généralités - Connaissance du contenu exigée - [Voir Wills - Topic 1504 ].

Cases Noticed:

DeWitt Estate, Re (2004), 276 N.B.R.(2d) 53; 724 A.P.R. 53 (T.D.), refd to. [para. 86].

Hay Estate, Re, [1995] 2 S.C.R. 876; 183 N.R. 1; 82 O.A.C. 161, refd to. [para. 86].

McKean Estate, Re (2000), 224 N.B.R.(2d) 321; 574 A.P.R. 321 (C.A.), refd to. [para. 88].

Johnson v. Pelkey et al., [1997] B.C.T.C. Uned. 778 (S.C.), refd to. [para. 89].

Counsel:

Christopher J. Stewart, for the plaintiffs;

Jacques Gauthier, for the defendants.

This matter was heard on October 16-19, 2006, before Paul S. Creaghan, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Moncton, who delivered the following judgment on October 27, 2006.