MacLeod Estate, Re, (1989) 94 N.S.R.(2d) 148 (ProbCt)

Court:Nova Scotia Probate Court
Case Date:January 17, 1989
Jurisdiction:Nova Scotia
Citations:(1989), 94 N.S.R.(2d) 148 (ProbCt)
 
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MacLeod Estate, Re (1989), 94 N.S.R.(2d) 148 (ProbCt);

    247 A.P.R. 148

MLB headnote and full text

In The Matter Of the Estate of Allan Roy MacLeod, late of Loch Lomond, County of Cape Breton, Province of Nova Scotia, deceased and In The Matter Of the Proof in Solemn Form of the last Will and Testament of Allan Roy MacLeod

Indexed As: MacLeod Estate, Re

Nova Scotia Probate Court

Ryan, J.C.C.

January 17, 1989.

Summary:

An application was made for proof in solemn form of the testator's will. The issues concerned testamentary capacity and the existence of suspicious circumstances surrounding the drafting of the will. The testator bequeathed most of his $250,000.00 estate to virtual strangers and made only token bequests to his two nieces (his closest relatives), with whom he had always been extremely close.

The Nova Scotia Probate Court held that the testator lacked testamentary capacity when he executed his will and that the proponents of the will failed to rebut the suspicious circumstances surrounding the will.

Wills - Topic 303

Testamentary capacity - Test for determining - The Nova Scotia Probate Court stated that a testator must have a "disposing mind and memory", which was a mind "able to comprehend, of its own initiative and volition, the essential elements of will-making, property, objects, just claims to consideration, revocation of existing disposition, and the like ..." - See paragraph 66.

Wills - Topic 407

Testamentary capacity - Mental disabilities - Psychotic or insane delusions - A testator executed a will on August 10, 1984, shortly after he began to board with other older persons at Mrs. MacLeod's home - The testator, like all other boarders, paid $375.00 per month to Mrs. MacLeod - The testator left most of his $250,000.00 estate to Mrs. MacLeod and her son, to compensate her for providing care - The testator bequeathed only token amounts to his two nieces, with whom he had been extremely close - In the past the testator intended to leave his estate to them - The testator's inexplicable change of attitude was based on delusions respecting his nieces, which were unfounded - The Nova Scotia Probate Court held that the testator's delusional insanity, plus the suspicious circumstances surrounding the drafting of the will, deprived the testator of testamentary capacity.

Wills - Topic 541

Testamentary capacity - Evidence and proof - Doctrine of suspicious circumstances -[See Wills - Topic 407 above].

Wills - Topic 541

Testamentary capacity - Evidence and proof - Doctrine of suspicious circumstances -The Nova Scotia Probate Court referred to the following explanation of the doctrine of suspicious circumstances: "If a will has been sworn to have been duly executed after having been read over to or by a testator who appears to understand it, then it will generally be presumed that he had testamentary capacity at the time of its execution but if, in the course of proving the will, it be comes apparent that there are circumstances raising a well-grounded suspicion as to whether the document indeed expresses the true will of the deceased, then a heavy burden lies on the court to look beyond the presumption created by compliance with these formalities and be satisfied that the will was the free act of a testator who at the time had a 'disposing mind and memory' ..." - See paragraph 69.

Cases Noticed:

Leger v. Poirier, [1944] 3 D.L.R. 1 (S.C.C.), appld. [para. 66].

MacGregor v. Ryan (1953), 53 D.L.R.(2d) 125 (S.C.C.), refd to. [para. 69].

Eady v. Waring (1974), 43 D.L.R.(2d) 665 (Ont. C.A.), refd to. [para. 70].

Lucier v. Lynch et al., [1947] 1 D.L.R. 830 (Ont. C.A.), refd to. [para. 72].

Maloney et al. v. Falardeau et al. (1986), 3 Q.A.C. 84 (C.A.), refd to. [para. 76].

Authors and Works Noticed:

Feeney, The Canadian Law of Wills (2nd Ed.), vol. 1, p. 26 [para. 77].

Counsel:

F. Elman, Q.C., for the proponent;

F. Gillis, for Mrs. Stewart and Mrs. Robinson.

This application was heard at Sydney, Nova Scotia, before Ryan, J.C.C., of the Nova Scotia Probate Court, who delivered the following judgment on January 17, 1989:

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