Kenny v. Kenny Estate, (2016) 376 N.S.R.(2d) 271 (SC)

• Judge: Pickup, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: August 12, 2016
• Jurisdiction: Nova Scotia
• Citations: (2016), 376 N.S.R.(2d) 271 (SC);2016 NSSC 214

Kenny v. Kenny Estate (2016), 376 N.S.R.(2d) 271 (SC);

    1185 A.P.R. 271

MLB headnote and full text

Temp. Cite: [2016] N.S.R.(2d) TBEd. AU.025

Erin Kenny and Jennifer Kenny (applicants) v. Angela Moss as executrix of the Estate of Leslie Kenny (respondent)

(Hfx. No. 439153; 2016 NSSC 214)

Indexed As: Kenny v. Kenny Estate

Nova Scotia Supreme Court

Pickup, J.

August 12, 2016.

Summary:

By a will dated December 2004, Leslie Kenny left his entire estate to his wife, Audrey, with the proviso that if she predeceased him his estate was to be divided between his two children, Philip Kenny and Angela Moss. Philip and Audrey predeceased him in May 2011 and June 2012, respectively. Leslie Kenny executed a new will in November 2012 and died on June 3, 2013. The 2012 will was admitted to Probate and a general grant of Probate was issued on July 29, 2013. Leslie Kenny's daughter Angela was the sole beneficiary under the will. Erin Kenny, who was Leslie's granddaughter and Philip's daughter, filed an application for proof in solemn form on May 2, 2015. Angela, as personal representative of the estate, filed a notice of objection on October 1, 2015, in which she objected to Erin's application. The issues on the application were as follows: (i) is Erin Kenny "a person interested in the estate" within the meaning of the Probate Act, S.N.S. 2000, c. 31, s. 31 and the Probate Court Practice, Procedure and Forms Regulations, N.S. Reg. 119/2001; (ii) was there any portion of the estate remaining undistributed as at the date of the application; (iii) who has the burden of proof, and did the doctrine of suspicious circumstances apply; and (iv) did Leslie Kenny have the required capacity when he executed the will?

The Nova Scotia Supreme Court held that, while it was satisfied that Erin Kenny was "a person interested in this estate" and had standing to bring the application, when the application was filed, all assets of the estate had been distributed. There being no assets left in the estate, the court dismissed the application. Alternatively, the court held that while the doctrine of suspicious circumstances applied, Angela had met her burden to establish that Leslie had the necessary testamentary capacity when he executed the 2012 will. He understood the implications of what he was doing, what property he possessed and who would benefit.

Executors and Administrators - Topic 1137

Grant of probate or letters of administration - Proof of will in solemn form - Time for - [See Executors and Administrators - Topic 1138 ].

Executors and Administrators - Topic 1138

Grant of probate or letters of administration - Proof of will in solemn form - Parties - Status - By a will dated December 2004, Leslie Kenny left his entire estate to his wife, Audrey, with the proviso that if she predeceased him his estate was to be divided between his two children, Philip Kenny and Angela Moss - Both Philip and Audrey predeceased him, in May 2011 and June 2012, respectively - Leslie executed a new will in November 2012 and died on June 3, 2013 - The 2012 will was admitted to Probate and a general grant of Probate was issued on July 29, 2013 - Leslie's daughter Angela was the sole beneficiary under the will - Erin Kenny, Leslie's granddaughter and Philip's daughter, filed an application for proof in solemn form on May 2, 2015 - Angela, as personal representative of the estate, filed a notice of objection on October 1, 2015, objecting to Erin's application - The Nova Scotia Supreme Court held that it was satisfied that Erin Kenny was "a person interested in the estate" within the meaning of the Probate Act, S.N.S. 2000, c. 31 and the Probate Court Practice, Procedure and Forms Regulations, N.S. Reg. 119/2001 and had standing to bring the application - However, when the application was filed, all assets of the estate had been distributed - Therefore, the court dismissed the application - See paragraphs 5 to 18.

Wills - Topic 302

Testamentary capacity - General principles - What constitutes - The Nova Scotia Supreme Court stated that "Testamentary capacity as a principle was defined in Feeney's Canadian Law of Wills, 4th Edition at s. 2.6 as follows: 'To use the time-honoured phrase, a person must be of "sound mind, memory and understanding" to be able to make a valid will. When a will is contested on the ground of mental capacity, the propounder must prove that a testator understood what he or she was doing: that the testator understood the "nature and quality of the act." The testator must be able to comprehend and recollect what property he or she was possessed, the persons that ordinarily might be expected to benefit, the extent of what is being given to each beneficiary and, finally, the nature of the claims of others who are being excluded.'" - See paragraph 21.

Wills - Topic 531

Testamentary capacity - Evidence and proof - General - By a will dated December 2004, Leslie Kenny left his entire estate to his wife, Audrey, with the proviso that if she predeceased him his estate was to be divided between his two children, Philip Kenny and Angela Moss - Both Philip and Audrey predeceased him, in May 2011 and June 2012, respectively - Leslie executed a new will in November 2012 and died on June 3, 2013 - The 2012 will was admitted to Probate and a general grant of Probate was issued on July 29, 2013 - Erin Kenny, Leslie's granddaughter and Philip's daughter, filed an application for proof in solemn form on May 2, 2015 - Angela, as personal representative of the estate, filed a notice of objection on October 1, 2015, objecting to Erin's application - The Nova Scotia Supreme Court held, inter alia, that while the doctrine of suspicious circumstances applied, Angela had met her burden to establish that Leslie had the necessary testamentary capacity when he executed the 2012 will - Dr. Johnson had prepared an expert neuropsychological report based on the medical records of Leslie Kenny from November 2005 to June 12, 2013, as well as a discovery transcript of Dr. Mallery - Dr. Mallery had found that Leslie exhibited symptoms consistent with moderate-stage Alzheimer dementia - Hominick, MSW, RSW, was part of a geriatric team - She prepared a "social work assessment" in which she quoted Dr. Mallery as saying "Mrs. Kenny clearly lacks capacity and so does Mr. Kenny" - The court placed limited weight on Dr. Johnson's testimony - The court stated that "For circumstances beyond her control she was unable to interview Mr. Kenny. As a result, she did an historical reconstruction which was based on reports in the treating physician's narrative of Dr. Mallery, Dr. Mallery's discovery and Ms. Hominick's assessment. Both Dr. Mallery and Ms. Hominick acknowledge no testing was done to assess the cognitive ability to sign a will. Moreover, the expert opinion of Dr. Johnson is contrary to the evidence of those individuals who knew Mr. Kenny best. Ms. Moss, as his daughter, had frequent contact with him. Frederick Saturley was Mr. and Mrs. Kenny's long time financial advisor and, in addition, was a friend who golfed with Mr. Kenny. Ms. Moss and Saturley both stated that in their opinion he had the necessary understanding and ability to execute the will. Dr. Johnson's evidence must be weighed against the testimony of these individuals who actually knew Mr. Kenny for a long time and were there at the time the will was executed." - The court accepted the evidence of Saturley and Matthews - See paragraphs 19 to 87.

Wills - Topic 531

Testamentary capacity - Evidence and proof - General - [See Wills - Topic 541 ].

Wills - Topic 539

Testamentary capacity - Evidence and proof - Lay opinions - Weight to be given to - [See first Wills - Topic 531 ].

Wills - Topic 540

Testamentary capacity - Evidence and proof - Expert opinions - Weight to be given to - [See first Wills - Topic 531 ].

Wills - Topic 541

Testamentary capacity - Evidence and proof - Doctrine of suspicious circumstances - By a will dated December 2004, Leslie Kenny left his entire estate to his wife, Audrey, with the proviso that if she predeceased him his estate was to be divided between his two children, Philip Kenny and Angela Moss - Both Philip and Audrey predeceased him, in May 2011 and June 2012, respectively - Leslie Kenny executed a new will in November 2012 and died on June 3, 2013 - The 2012 will was admitted to Probate and a general grant of Probate was issued on July 29, 2013 - Erin Kenny, Leslie's granddaughter and Philip's daughter, filed an application for proof in solemn form on May 2, 2015 - Angela, as personal representative of the estate, filed a notice of objection on October 1, 2015, objecting to Erin's application - The Nova Scotia Supreme Court held, inter alia, that while the doctrine of suspicious circumstances applied, Angela had met her burden to establish that Leslie had the necessary testamentary capacity when he executed the 2012 will - He understood the implications of what he was doing, what property he possessed and who would benefit - The court considered, inter alia, that "... the circumstances surrounding the signing of the 2004 will are somewhat similar to those in 2012. That is, Mr. Matthews [lawyer] and Mr. Saturley [financial advisor and friend] were both present with Leslie Kenny and Audrey Kenny at the signing of the will in 2004, and then again in 2012 ... I accept the evidence of Mr. Saturley and Mr. Matthews [supporting testamentary capacity]. Both gave their evidence in a forthright, fair and professional manner. More importantly, they are independent from the Kenny family and have nothing to gain in these proceedings from the estate." - Further, Leslie was consistent in his wish to benefit his daughter Angela after the death of his son Philip, making transfers of property to her jointly that were consistent with the November 2012 will - Until Philip's death, Leslie had divided his estate between his two children - Upon Philip's death and given his stated dislike for his daughter-in-law, Leslie decided to benefit his daughter Angela, and in the event of her death, to benefit all of his grandchildren, including those of his late son and daughter-in-law - See paragraphs 19 to 101.

Words and Phrases

Issue - The Nova Scotia Supreme Court interpreted the meaning of this word as used in the law of wills and succession - See paragraph 11.

Words and Phrases

Person interested in the estate - The Nova Scotia Supreme Court discussed the meaning of this phrase as found in s. 31 of the Probate Act, S.N.S. 2000, c. 31 - See paragraphs 5 to 13.

Counsel:

Brian Casey, Q.C., and Geoffrey J. Franklin, for the applicants;

Jeremy Gay, for the respondent.

This case was heard in Halifax, N.S., on April 25-27, 2016, by Pickup, J., of the Nova Scotia Supreme Court, who delivered the following decision on August 12, 2016.