Little Estate, Re, (1998) 169 N.S.R.(2d) 113 (SC)

• Judge: Davison, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: June 18, 1998
• Jurisdiction: Nova Scotia
• Citations: (1998), 169 N.S.R.(2d) 113 (SC)

Little Estate, Re (1998), 169 N.S.R.(2d) 113 (SC);

    508 A.P.R. 113

MLB headnote and full text

Temp. Cite: [1998] N.S.R.(2d) TBEd. AU.004

In The Matter Of the petition of Glenn Allen Little, for Proof in Solemn Form, pursuant to section 36 of the  Probate Act, R.S.N.S. 1989, c. 359;

And In The Matter Of the Estate of Althea Myrtle Little, Late of Shreveport, in the State of Louisiana, United States of America, deceased.

(1996 No. 48977P)

Indexed As: Little Estate, Re

Nova Scotia Supreme Court

Davison, J.

June 18, 1998.

Summary:

A testatrix made two wills in 1977 and 1980. The wills were similar. The 1980 will contained a revocation clause, revoking the 1977 will. After the testatrix's death, the 1977 will was found, but only a copy of the 1980 will was found. The executor applied for proof in solemn form of the 1977 will. Alternatively, he applied for proof in solemn form of the 1980 will.

The Nova Scotia Supreme Court held that the copy of the 1980 will could be admitted to probate. The testator erroneously believed she could revive the 1977 will by destroying the 1980 will. Therefore, the court applied the doctrine of dependent relative revocation and held that the 1980 will was not revoked when it was destroyed.

Wills - Topic 2338

Revocation - By act of testator - Condi­tional revocation (dependent relative revo­cation) - A testatrix made two wills in 1977 and 1980 - The wills were similar - The 1980 will contained a revocation clause, revoking the 1977 will - After the testatrix's death, the 1977 will was found, but only a copy of the 1980 will was found - The executor applied for proof in solemn form - The Nova Scotia Supreme Court held that the copy of the 1980 will could be admitted to probate - The testator erron­eously believed she could revive the 1977 will by destroying the 1980 will - Therefore, the court applied the doctrine of dependent relative revoca­tion and held that the 1980 will was not revoked when it was destroyed.

Cases Noticed:

MacKinley Estate, Re (1993), 122 N.S.R.(2d) 354; 338 A.P.R. 354 (C.A.), refd to. [para. 17].

Bridgewater Estate, Re, [1965] All E.R. 718, refd to. [para. 19].

Ott, Re (1972), 2 O.R. 5 (Surr. Ct.), refd to. [para.

Statutes Noticed:

Wills Act, R.S.N.S. 1989, c. 505, sect. 19, sect. 21 [para. 16].

Authors and Works Noticed:

Feeney, Thomas, The Canadian Law of Wills (3rd Ed.), p. 146 [para. 20].

Counsel:

Jean V. Webb, for the petitioner, Glenn Allen Little;

Roberta J. Clarke, Q.C., for the respon­dents, Leroy H. Little, Kathleen Stefan- isn, Shirley Catanese, Barbara Graham and Joan Carlton.

This matter was heard before Davison, J., of the Nova Scotia Supreme Court, who delivered the following judgment on June 18, 1998.