Kyte Estate, Re, (1998) 169 N.S.R.(2d) 192 (ProbCt)

• Judge: MacLellan, J.
• Court: Probate Court of Nova Scotia (Canada)
• Case Date: February 10, 1998
• Jurisdiction: Nova Scotia
• Citations: (1998), 169 N.S.R.(2d) 192 (ProbCt)

Kyte Estate, Re (1998), 169 N.S.R.(2d) 192 (ProbCt);

    508 A.P.R. 192

MLB headnote and full text

Temp. Cite: [1998] N.S.R.(2d) TBEd. MY.013

In The Matter Of: In the Estate of Reverend John Kyte, Late of Tracadie, Antigonish County

(Probate No. 1292)

Indexed As: Kyte Estate, Re

Nova Scotia Probate Court

MacLellan, J.

February 10, 1998.

Summary:

The applicant sought to remove the execu­trix of an estate. She argued that the execu­trix's appointment was invalid because the executrix's husband was a witness to the will.

The Nova Scotia Probate Court dismissed the application.

Executors and Administrators - Topic 384

Appointment - Qualification and tenure - Removal and suspension - Conflict of interest - An applicant sought to remove the executrix of an estate - She argued that the executrix's appointment was invalid because the executrix's husband had been a witness to the will - The Nova Scotia Probate Court rejected the argument - The appointment of a person as an exe­cutor or executrix did not confer a specific benefit on that person - As s. 14 provided that an executor was competent to prove execution of the will, or to prove its valid­ity or invalidity, it was clear that it was intended that an executor could be a wit­ness to the will because a will was proved by evi­dence given by witnesses to the will.

Executors and Administrators - Topic 384

Appointment - Qualification and tenure - Removal and suspension - Conflict of interest - An applicant sought to remove the executrix of an estate - She argued that an executrix's appointment was invalid because the executrix's husband had been a witness to the will - Section 12 of the Wills Act provided that "[e]very devise, bequest or appointment ... to an attesting witness of the will, or to the wife or hus­band of such witness, is void ..." - The Nova Scotia Pro­bate Court stated that the word "appoint­ment" in s. 12 did not refer to the nomina­tion or appointment of an executor or exe­cutrix - See paragraphs 1 to 6.

Words and Phrases

Appointment - The Nova Scotia Probate Court discussed the meaning of the word "appointment" in s. 12 of the Wills Act, R.S.N.S. 1989, c. 505 - See paragraphs 4 to 6.

Statutes Noticed:

Wills Act, R.S.N.S. 1989, c. 505, sect. 12 [para. 4]; sect. 14 [para. 5].

Counsel:

Deborah Gillis, for the applicant;

Lawrence Evans, Q.C., Proctor of the Estate.

This application was heard at Antigonish, Nova Scotia, on February 10, 1998, before MacLellan, J., of the Nova Scotia Probate Court, who delivered the decision orally on February 10, 1998 and released the follow­ing written decision on April 1, 1998.