Marsh Estate, Re, (1991) 104 N.S.R.(2d) 266 (CA)

• Judge: Clarke, C.J.N.S., Chipman and Freeman, JJ.A.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: May 23, 1991
• Jurisdiction: Nova Scotia
• Citations: (1991), 104 N.S.R.(2d) 266 (CA)

Marsh Estate, Re (1991), 104 N.S.R.(2d) 266 (CA);

  283 A.P.R. 266

MLB headnote and full text

In The Matter Of the Estate of Estella Phyllis Marsh.

Frank Fryer and Hilda Fryer (appellants) v. Ronald Harris and Gwyneth Harris (respondents)

(S.C.A. No. 02393)

Indexed As: Marsh Estate, Re

Nova Scotia Supreme Court

Appeal Division

Clarke, C.J.N.S., Chipman and Freeman, JJ.A.

May 23, 1991.

Summary:

Marsh executed a will on May 27, 1987, 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 the brother-in-law.

The Nova Scotia Probate Court, in a judg­ment reported 99 N.S.R.(2d) 221; 270 A.P.R. 221, 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. The brother-in-law and estate appealed.

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

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 her brother-in-law, executed a codicil revoking the bequest to the minister and leaving the house to her sister - The Nova Scotia Court of Appeal affirmed that the codicil was procured by the brother-in-law's exercise of undue influence and was, accordingly, invalid.

Cases Noticed:

Wingrove v. Wingrove (1885), 11 P.D. 81, refd to. [para. 9].

Harmes et al. v. Hinkson, [1946] 3 D.L.R. 497, refd to. [para. 9].

Statutes Noticed:

Probate Court Act, R.S.N.S. 1989, c. 359, sect. 131 [para. 12].

Counsel:

Daniel J. Clarke, for the appellants;

Peter M.S. Bryson, for the respondents.

This appeal was heard before Clarke, C.J.N.S., Chipman and Freeman, JJ.A., of the Nova Scotia Supreme Court, Appeal Division.

On May 23, 1991, Chipman, J.A., delivered the following judgment orally for the Court of Appeal.