Keating Estate, Re, (1981) 46 N.S.R.(2d) 550 (ProbCt)

• Judge: O Hearn, J.
• Court: Probate Court of Nova Scotia (Canada)
• Case Date: May 20, 1981
• Jurisdiction: Nova Scotia
• Citations: (1981), 46 N.S.R.(2d) 550 (ProbCt)

Keating Estate, Re (1981), 46 N.S.R.(2d) 550 (ProbCt);

    89 A.P.R. 550

MLB headnote and full text

Re Keating's Estate

(P 36957)

Indexed As: Keating Estate, Re

Nova Scotia Probate Court

O Hearn, J.

May 20, 1981.

Summary:

This case arose out of the determination of the effect of the physical removal of a portion of a page of an original executed will.

The Nova Scotia Probate Court held the testator was operating under a fundamental mistake regarding the nature and effect of his act and admitted the will to probate in its original executed form, the portion excised by the testator to be included.

Wills - Topic 2333

Revocation - By act of testator - Capacity - The Nova Scotia Probate Court stated that in general, an act of revocation requires the kind of testamentary capacity necessary for making a will - See paragraph 19.

Wills - Topic 2334

Revocation - By act of testator - Intention - The Nova Scotia Probate Court distinguished an error in form and an error in substance in the revocation of wills, an error in substance nullifying an attempted revocation - See paragraphs 17 and 20.

Wills - Topic 2336

Revocation - By act of testator - By destruction or mutilation - The Nova Scotia Probate Court stated that where a will is destroyed or mutilated in a place where the testator would naturally put it, there is a rebuttable presumption that the testator destroyed it animo revocandi - See paragraph 15.

Wills - Topic 2348

Revocation - By act of testator - Evidence and proof - The Nova Scotia Probate Court held that declarations made by the testator regarding intent were admissible with respect to his animus revocandi to show that the testator was labouring under a fundamental mistake regarding the nature and effect of his act - See paragraph 17.

Statutes Noticed:

Wills Act, R.S.N.S. 1967, c. 340, sect. 18 [para. 13].

Authors and Works Noticed:

Theobald on Wills (13th Ed.), para. 159 [para. 19].

Counsel:

Thomas Khattar, for the executor;

Rev. John F. DeLouchry, in person;

John J. O'Toole in person.

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

The judgment of O HEARN, J., was delivered on May 20, 1981.