MacLeod Estate, Re, (1990) 95 N.S.R.(2d) 61 (CA)

• Judge: Hart, Pace and Chipman, JJ.A.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: January 16, 1990
• Jurisdiction: Nova Scotia
• Citations: (1990), 95 N.S.R.(2d) 61 (CA)

MacLeod Estate, Re (1990), 95 N.S.R.(2d) 61 (CA);

    251 A.P.R. 61

MLB headnote and full text

Reverend Neil James MacLean, Executor of the last will and testament of Allan Roy MacLeod, deceased (appellant) v. Helen MacLeod Stewart and Sarah Ann MacLeod Robinson (respondents)

(S.C.A. 02125)

Indexed As: MacLeod Estate, Re

Nova Scotia Supreme Court

Appeal Division

Hart, Pace and Chipman, JJ.A.

January 16, 1990.

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, in a judgment reported 94 N.S.R.(2d) 148; 247 A.P.R. 148, 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. The executor appealed.

The Nova Scotia Supreme Court, Appeal Division, dismissed the appeal.

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 - The Nova Scotia Court of Appeal affirmed the decision.

Wills - Topic 541

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

Counsel:

Frank L. Elman, Q.C., for the appellant;

John Arnold, for the respondents.

This appeal was heard on January 16, 1990, before Hart, Pace and Chipman, JJ.A., of the Nova Scotia Supreme Court, Appeal Division.

On January 16, 1990, Hart, J.A., delivered the following judgment orally for the Court of Appeal.