Hubley v. Cox Estate, (1999) 181 N.S.R.(2d) 1 (SC)

JudgeGruchy, J.
CourtSupreme Court of Nova Scotia (Canada)
Case DateDecember 06, 1999
JurisdictionNova Scotia
Citations(1999), 181 N.S.R.(2d) 1 (SC)

Hubley v. Cox Estate (1999), 181 N.S.R.(2d) 1 (SC);

 560 A.P.R. 1

MLB headnote and full text

Temp. Cite: [1999] N.S.R.(2d) TBEd. DE.032

Paul Hubley (plaintiff) v. Estate of Mildred Gertrude Cox, deceased, late of Dartmouth, in the County of Halifax, Province of Nova Scotia - Probate No. 48326 and Darrell Hubley (respondents)

(1998 S.H. No. 150216)

Indexed As: Hubley v. Cox Estate

Nova Scotia Supreme Court

Gruchy, J.

December 6, 1999.


The deceased's youngest son applied for proof in solemn form of the deceased's last will. The deceased's oldest son produced for probate an earlier will. He alleged that the later will had been voided and that the testatrix had lacked capacity when she executed it.

The Nova Scotia Supreme Court deter­mined that the testatrix had the requisite testamentary capacity and that the proper execution of the later will had been proved.

Wills - Topic 305

Testamentary capacity - General principles - Requirement that testator understand what is being done - An elderly testatrix executed a will in 1994 dividing her estate between the oldest and the youngest of her three sons - She had been estranged from her middle son for many years - In 1996, she executed a new will, leaving her entire estate to the youngest of her sons, because he lived at home, looked after her physical needs and was HIV positive - She dis­cussed her new will with friends - She commented that her younger son had taken good care of her and she would give him the care he needed through her will - She also remarked that she considered it unfair that her oldest and middle sons had shared in the residue of their father's estate and that her youngest son had been omitted from his father's will - The Nova Scotia Supreme Court held that the testatrix had the requisite testamentary capacity to execute the 1996 will, where she knew and approved the contents of the will - See paragraphs 78 to 113.

Wills - Topic 1704

Preparation and execution - Undue influ­ence - What constitutes - General - [See Wills - Topic 2334 ].

Wills - Topic 1744

Preparation and execution - Alterations and deletions - Validity of - A lawyer and her secretary attended at the home of an elderly woman, bringing with them a will prepared ac­cording to her instructions - After some conversation about the con­tents, the will was read to the testatrix and she initialled the first two pages and signed the third - The lawyer and her secretary then initialled and signed the will as witnesses - The testatrix reminded the lawyer that the lawyer had omitted to include grand­daughters as alternate execu­tors - The lawyer returned to her office, made the corrections, initialled it and sent her secre­tary back to the home of the testatrix to have the correction initialled by the testa­trix and the secretary - The Nova Scotia Supreme Court stated that the will as originally signed complied with the re­quirements of the Wills Act - However, the purported amendment did not comply and failed - The presumption of deliberate destruction was rebutted by the circum­stances with the result that the will as originally executed was established - See paragraphs 46 to 66.

Wills - Topic 2334

Revocation - By act of testator - Intention - A testatrix made a will in 1994 dividing her estate between two of her sons - In 1996, she made a new will leaving her estate to the younger son who was HIV positive, lived with his mother and took care of her - The older son was in charge of his mother's financial affairs - He insisted that his mother void the new will, telling her it was an illegal will and that it gave the younger son free access to her money - The will was marked void, the testatrix and the older son signed it and he took it out into another room to have a friend sign it - The Nova Scotia Supreme Court held that the purported revocation was invalid because it did not comply with the requirements for revocation in the Wills Act - Further, the older son exerted undue influence on his mother in order to have the will revoked - See paragraphs 67 to 77.

Cases Noticed:

Balcom Estate, Re (1975), 22 N.S.R.(2d) 707; 31 A.P.R. 707 (Prob. Ct.), refd to. [para. 59].

McBurnie v. Patriquin (1975), 14 N.S.R.(2d) 680; 11 A.P.R. 680 (C.A.), refd to. [para. 65].

Sugden v. Lord St. Leonards (1876), 1 P.D. 154 (C.A.), refd to. [para. 65].

Sigurdson v. Sigurdson, [1935] 4 D.L.R. 529 (S.C.C.), refd to. [para. 65].

Hay Estate, Re, [1995] 2 S.C.R. 876; 183 N.R. 1; 82 O.A.C. 161; 125 D.L.R.(4th) 431; 7 E.T.R. 209, refd to. [para. 103].

Vout v. Hay - see Hay Estate, Re.

Banks v. Goodfellow (1870), L.R. 5 Q.B. 549 (Q.B.), refd to. [para. 104].

Murphy v. Lamphier (1914), 20 D.L.R. 906 (Ont. C.A.), refd to. [para. 104].

Leger v. Poirier, [1944] S.C.R. 152, refd to. [para. 106].

Eady et al. v. Waring (1974), 2 O.R.(2d) 627 (C.A.), refd to. [para. 108].

Morrison Estate, Re (1982), 52 N.S.R.(2d) 640; 106 A.P.R. 640 (C.A.), refd to. [para. 108].

Davis, Re (1963), 40 D.L.R.(2d) 801 (H.C.), refd to. [para. 109].

Laramee v. Ferron (1909), 41 S.C.R. 391, refd to. [para. 110].

Gregory, Re (1980), 37 N.S.R.(2d) 640; 67 A.P.R. 640 (Prob. Ct.), refd to. [para. 111].

Russell v. Fraser, [1979] B.C.J. No. 41 (S.C.), refd to. [para. 112].

Statutes Noticed:

Wills Act, R.S.N.S. 1989, c. 505, sect. 6, sect. 7 [para. 50]; sect. 19 [para. 67]; sect. 20 [para. 57].

Authors and Works Noticed:

Feeney, The Canadian Law of Wills (3rd Ed.), vol. 1, pp. 42, 43 [para. 77]; 82 [para. 52]; 91 [para. 61]; 134, 135 [para. 64].


Thomas J. Burchell, Q.C. and Karen A. Quigley, for the plaintiff;

William E. Kelleher, Q.C., for the Estate of Mildred Cox;

Ronald Pizzo, for the respondent, Darrell Hubley.

This matter was heard at Halifax, Nova Scotia, on June 21 to 25 and October 4 and 5, 1999, before Gruchy, J., of the Nova Scotia Supreme Court, who delivered the following judgment on December 6, 1999.

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