Marsh Estate, Re, (1990) 99 N.S.R.(2d) 221 (ProbCt)

• Court: Probate Court of Nova Scotia (Canada)
• Case Date: October 31, 1990
• Jurisdiction: Nova Scotia
• Citations: (1990), 99 N.S.R.(2d) 221 (ProbCt)

Marsh Estate, Re (1990), 99 N.S.R.(2d) 221 (ProbCt);

    270 A.P.R. 221

MLB headnote and full text

In The Matter Of the Estate of Estella Phyllis Marsh

(Probate File No.: 43079)

Indexed As: Marsh Estate, Re

Nova Scotia Probate Court

Bateman, J.C.C.

October 31, 1990.

Summary:

Marsh executed a will on May 27, 1989, leaving her house to a minister and his wife. On November 9, 1988, at her brother-in-law's request, Marsh executed a codicil revoking the bequest and leaving the house to her sister. Marsh died on March 14, 1989. The executor of Marsh's estate applied to prove the will and codicil in solemn form. The minister claimed Marsh lacked testamentary capacity to execute the codicil and that it was procured by the undue influence of Marsh's brother-in-law.

The Nova Scotia Probate Court admitted the will to probate in solemn form. The court stated that the codicil was invalid, because it was the result of undue influence exerted by the brother-in-law.

Wills - Topic 303

Testamentary capacity - Tests for determining capacity - The Nova Scotia Probate Court discussed generally the test for determining whether a testator had testamentary capacity - The court stated that a testator could suffer delusions and still have testamentary capacity provided the delusions did not affect the testator's decision as to the bequest - See paragraphs 12 to 14.

Wills - Topic 404

Testamentary capacity - Mental disabilities - Delusions - [See Wills - Topic 303 ].

Wills - Topic 534

Testamentary capacity - Evidence and proof - Onus of proof - The Nova Scotia Probate Court stated that the propounder of a will had the burden of proving due execution, testamentary capacity and knowledge and approval of the contents of the will - The burden of proving the existence of undue influence was on the person attacking the will - See paragraph 8.

Wills - Topic 1704

Preparation and execution - Undue influence - What constitutes - Shortly after Marsh's husband died she executed a will leaving her house to a minister and his wife - Marsh was not a religious woman and did not attend church - The minister visited her once a month as a friend - There was no evidence of a campaign to convince Marsh to leave her house to him - The minister did mention in casual conversation that he had limited pension income and could not afford a house to retire to - The Nova Scotia Probate Court stated that the will was valid; the minister did not exert undue influence to procure the bequest - See paragraphs 30 to 35.

Wills - Topic 1704

Preparation and execution - Undue influence - What constitutes - Shortly after Marsh's husband died she executed a will leaving her house to a minister and his wife - They were casual friends only - Marsh's brother-in-law, who looked after her business affairs, threatened to withdraw his services and advised her to get the minister to do the work - Marsh, who was in poor health, alone and dependent upon the brother-in-law, executed a codicil revoking the bequest to the minister and leaving the house to her sister - The Nova Scotia Probate Court held that the codicil was procured by the brother-in-law's exercise of undue influence and was, accordingly, invalid - See paragraphs 37 to 54.

Wills - Topic 1704

Preparation and execution - Undue influence - What constitutes - The Nova Scotia Probate Court stated that "it is not improper for a potential beneficiary to express her wish to benefit and indeed, to plead her case as to why she should benefit. In other words, it is not improper for a potential beneficiary to attempt to influence the ultimate decision of the testator. The problem arises when that undue influence becomes coercive, in effect, when the beneficiary dominates the decision of the testator" - See paragraph 46.

Wills - Topic 1714

Preparation and execution - Undue influence - Evidence - Onus of proof - [See Wills - Topic 534 ].

Cases Noticed:

Banks v. Goodfellow, [1920] S.C. (H.L.) 63, appld. [para. 13].

Harmes et al. v. Hinkson, [1946] 3 D.L.R. 497 (P.C.), refd to. [para. 39].

Maw v. Dickey et al. (1974), 52 D.L.R.(3d) 178 (Ont. D.C.), refd to. [para. 40].

Craig v. Lamoureaux (1920), 50 D.L.R. 10 (P.C.), refd to. [para. 44].

Authors and Works Noticed:

Feeney, Thomas, The Canadian Law of Wills (3rd Ed.), generally [para. 15]; p. 42 [para. 38].

Counsel:

Timothy C. Matthews, for Royal Trust;

Daniel J. Clarke, for Frank and Hilda Fryer;

Peter Bryson, for Reverend Ronald and Gwyneth Harris.

This application was heard before Bateman, J.C.C., of the Nova Scotia Probate Court, who delivered the following judgment on October 31, 1990.