Gregory, Re, (1979) 37 N.S.R.(2d) 640 (ProbCt)

Judge:O Hearn, J.
Court:Nova Scotia Probate Court
Case Date:April 09, 1979
Jurisdiction:Nova Scotia
Citations:(1979), 37 N.S.R.(2d) 640 (ProbCt)
 
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Gregory, Re (1979), 37 N.S.R.(2d) 640 (ProbCt);

    67 A.P.R. 640

MLB headnote and full text

Re Gregory

(No. P34944)

Indexed As: Gregory, Re

Nova Scotia Probate Court

O Hearn, J.

April 9, 1979.

Summary:

This case arose out of an action to prove a will in solemn form. At issue was the testamentary capacity of the testatrix. The testatrix was 68 years old when the will was signed. She suffered from Parkinson's disease, urinary problems and deafness. When the will was signed, the testatrix was receiving care in a nursing home following a fractured hip. The testatrix objected strongly to being in the nursing home. The Nova Scotia Probate Court held that the testatrix acted in a senile or paranoid fashion on different occasions, but her judgment was not affected. The Probate Court held that the dispositions in the will were based on a rational scheme, which the testatrix understood at the time.

Wills - Topic 546

Testamentary capacity - Evidence and proof - Where testator insane prior to date of will - The Nova Scotia Probate Court held that, if the evidence established that a testator was insane prior to the date of the will, then the burden was on the proponent of the will to establish that the will was made during a lucid interval - See paragraph 61.

Wills - Topic 401

Testamentary capacity - Mental disabilities - General - The Nova Scotia Probate Court held that will making does not require sound judgment but rather judgment which is not affected by a mental disorder which affects the testator's natural faculties - See paragraph 62.

Authors and Works Noticed:

W. J. Williams, The Law Relating to Wills (3rd Ed. 1952), p. 14 [para. 34].

Counsel:

Cecil Moore, Q.C., for Reginald Gerald Rands, proponent of the will;

Elizabeth Roscoe, for Marie Young, legatee;

Patrick Curran, for Rita O'Toole, one of the next-of-kin.

This case was heard by O HEARN, J., of the Nova Scotia Court of Probate.

On April 9, 1979, O HEARN, J., delivered the following judgment:

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