Kumar Estate, Re, 2002 NSSC 65

• Judge: Coughlan, J.
• Court: Probate Court of Nova Scotia (Canada)
• Case Date: December 11, 2001
• Jurisdiction: Nova Scotia
• Citations: 2002 NSSC 65;(2002), 202 N.S.R.(2d) 307 (ProbCt)

Kumar Estate, Re (2002), 202 N.S.R.(2d) 307 (ProbCt);

 632 A.P.R. 307

MLB headnote and full text

Temp. Cite: [2002] N.S.R.(2d) TBEd. AP.011

In The Matter Of: The Estate of Stella Shara Kumar, late of Halifax, in the County of Halifax and Province of Nova Scotia

(Probate No. 51824; 2002 NSSC 65)

Indexed As: Kumar Estate, Re

Nova Scotia Probate Court

Coughlan, J.

March 5, 2002.

Summary:

A testatrix had executed two printed form wills on the same date. They were not identi­cal, and the witnesses to the wills were uncertain of the order in which they had been executed.

The Nova Scotia Probate Court admitted both wills to probate.

Executors and Administrators - Topic 1037

Grant of probate or letters of administra­tion - Application for grant - Multiple wills - [See Wills - Topic 83 ].

Wills - Topic 83

Testamentary instruments - Successive wills - Effect of second will - A testatrix had executed two printed form wills on the same date - They were not identical, and each contained a revocation clause - The witnesses to the wills were uncertain of the order in which they had been executed - The Nova Scotia Probate Court held that the two documents, although different in some respects, were not inconsistent - The court held that the consistency between the two documents, in combination with the lack of evidence as to which document was executed at a later point in time, allowed both documents to be admitted to probate.

Wills - Topic 1744

Preparation and execution - Alterations and deletions - Validity of - A testatrix had executed two printed form wills on the same date - They were not identical, and the witnesses to the wills were uncertain of the order in which they had been executed - Both documents contained certain words and numbers with lines drawn through them - The lines were not initialled by the witnesses and some were not initialled by the testatrix - The Nova Scotia Probate Court held that as it was not known when the alterations were made, the documents were to be interpreted including the words and numbers with lines drawn through them - See paragraphs 11 and 12.

Cases Noticed:

Kane, Re (1979), 5 E.T.R. 44 (N.S. Prob. Ct.), refd to. [para. 5].

Townsend v. Moore, [1905] P. 66 (C.A.), refd to. [para. 8].

In the Goods of Kernaghan, [1938] N.I. 130 (K.B.D. Probate), refd to. [para. 8].

O'Brien, Re; Dalhousie University v. Dartmouth (City) and Dartmouth Hos­pital Commission (1978), 25 N.S.R.(2d) 262; 36 A.P.R. 262; 85 D.L.R.(3d) 532 (C.A.), refd to. [para. 10].

Fitzsimmons, Re, [1939] 2 D.L.R. 50 (N.S.C.A.), dist. [para. 16].

Authors and Works Noticed:

Feeney, Thomas G., The Canadian Law of Wills (3rd Ed. 1987), vol. 1, p. 17 [para. 13].

Theobald on Wills (16th Ed.), p. 77 [para. 8].

Williams, Law Relating to Wills (3rd Ed.), p. 104 [para. 8].

Counsel:

Erin O'Brien Edmonds, for the applicant;

Rebecca L. Lamb, guardian ad litem for the minor beneficiaries.

This matter was heard in Chambers, on December 11, 2001, in Halifax, N.S., by Coughlan, J., of the Nova Scotia Probate Court, who delivered the following decision on March 5, 2002.