Johnson Estate, Re, (2001) 196 N.S.R.(2d) 385 (ProbCt)

Judge:Coughlan, J.
Court:Nova Scotia Probate Court
Case Date:September 18, 2001
Jurisdiction:Nova Scotia
Citations:(2001), 196 N.S.R.(2d) 385 (ProbCt);2001 NSSC 133
 
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Johnson Estate, Re (2001), 196 N.S.R.(2d) 385 (ProbCt);

 613 A.P.R. 385

MLB headnote and full text

Temp. Cite: [2001] N.S.R.(2d) TBEd. OC.001

In The Matter Of the Estate of Orland Earl Johnson, late of Halifax, in the County of Halifax and Province of Nova Scotia

(Probate No. 51157; 2001 NSSC 133)

Indexed As: Johnson Estate, Re

Nova Scotia Probate Court

Coughlan, J.

September 18, 2001.

Summary:

On the day he died, Johnson signed both a handwritten will and a printed form will. Both contained standard revocation clauses. The executor sought proof in solemn form of both documents as Johnson's last will. At issue were (1) whether execution formalities were complied with, (2) whether Johnson had testamentary capacity, (3) whether blanks in the handwritten will were filled in before or after Johnson executed the will, (4) whether Johnson had knowledge of and approved the contents of both documents and (5) which document was signed first and did the last signed document revoke the first signed.

The Nova Scotia Probate Court admitted both documents to probate as Johnson's last will. The execution formalities of the Wills Act were complied with. Johnson had testa­mentary capacity. The blanks were filled in before he executed the document. Johnson knew of and approved the contents of both documents. The printed form will was signed first, but was not intended to be revoked by the subsequently signed handwritten will.

Wills - Topic 1504

Preparation and execution - General - Requirement of knowledge of contents - The Nova Scotia Probate Court stated that on an application to prove a will in solemn form the propounder of the will bore the burden of establishing that the testator had knowledge of and approved the contents of the will - The onus was heavier where the main beneficiary of the will was the person who prepared its contents (i.e., suspicious circumstances) - Considering the evidence of all persons present at the time, including the two attesting witnesses, the court was satisfied that the contents of the will were read to the testator and approved by him - See paragraphs 46 to 48.

Wills - Topic 1536

Preparation and execution - Signature - Time for signature - A handwritten will (with blank spaces left to be filled in) was prepared for the testator to sign - At issue was whether the blank spaces were filled in after the testator signed, which would invalidate the document as a will - The Nova Scotia Probate Court held that the will was signed by the testator after the blanks were filled in and read to him for his approval - Accordingly, the will was not invalid on that ground that it was not completed when signed - See paragraphs 40 to 45.

Wills - Topic 1556

Preparation and execution - Attestation - Acknowledgment or making of signature by testator in presence of witnesses - The two documents comprising Johnson's will were purportedly signed by him before two neighbours arrived to witness his will - Both documents were on the coffee table situated between Johnson and the witnesses - Johnson was talking and joking with the witnesses and a pen was passed to them - The witnesses signed one document and initialled the other in Johnson's presence - It was clear to the witnesses that Johnson wanted the documents witnessed - One of the witnesses recognized Johnson's signa­ture - The Nova Scotia Probate Court held that Johnson properly acknowledged his signature, as required by the Wills Act - Further, the witnesses initializing one of the documents (rather than signing it) was sufficient to constitute proper attestation by the witnesses - See paragraphs 32 to 37.

Wills - Topic 1557

Preparation and execution - Attestation - Signature of attesting witnesses - [See Wills - Topic 1556 ].

Wills - Topic 2374

Revocation - By subsequent will - Inten­tion - A terminally ill testator wished to make a new will - His half-sister prepared a handwritten will on his instructions - The testator's brother-in-law, at the half-sister's request, purchased a standard typewritten will kit - Both were completed, signed and witnessed contemporaneously - Both con­tained standard revocation clauses, which no one addressed their minds to because legal advice was not obtained - At issue was whether the document that was techni­cally signed last revoked the document that was signed first - The Nova Scotia Probate Court held that both documents comprised the testator's will - The two documents stood together and were not contradictory -The testator never intended one to revoke the other - This was not a case of a subse­quent will revoking a former will - It was the intention that both documents com­prised the will - See paragraphs 49 to 54.

Cases Noticed:

Daintree and Butcher v. Fasulo (1888), 13 P.D. 102 (C.A.), refd to. [para. 34].

Leger v. Poirier, [1944] 3 D.L.R. 1 (S.C.C.), refd to. [para. 39].

Kennedy v. MacEachern (1978), 27 N.S.R.(2d) 329; 41 A.P.R. 329 (C.A.), refd to. [para. 40].

MacGregor v. Ryan (1966), 53 D.L.R.(2d) 126 (S.C.C.), refd to. [para. 47].

McCarthy and Cunliffe (Buller Estate) v. Fawcett and Buller et al., [1944] 1 W.W.R. 228 (B.C.S.C.), refd to. [para. 51].

Authors and Works Noticed:

Feeney, Thomas G., Canadian Law of Wills (3rd Ed.), p. 96 [para. 36].

Counsel:

R. Peter Muttart, Q.C., for the applicant;

J.D.F. Theakston, Q.C., for the respondent.

This application was heard on April 3 and 6, 2001, at Halifax, N.S., before Coughlan, J., of the Nova Scotia Probate Court, who delivered the following judgment on Septem­ber 18, 2001.

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