Massey Estate, Re, (1997) 163 N.S.R.(2d) 278 (CA)

• Judge: Flinn, J.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: November 06, 1997
• Jurisdiction: Nova Scotia
• Citations: (1997), 163 N.S.R.(2d) 278 (CA)

Massey Estate, Re (1997), 163 N.S.R.(2d) 278 (CA);

    487 A.P.R. 278

MLB headnote and full text

Temp. Cite: [1997] N.S.R.(2d) TBEd. DE.007

Margaret Mitchell, Diane Buchanan and Suzanne Cers (applicants) v. Montreal Trust Company of Canada and Mary Price, in their capacity as Executors of the Estate of Lucy A. Massey (respondents)

(C.A. No. 141912)

Indexed As: Massey Estate, Re

Nova Scotia Court of Appeal

Flinn, J.A.

November 12, 1997.

Summary:

The testatrix made wills in 1986, 1989 and 1990 leaving the $1,000,000 residue of her estate to her three nieces. After 1993 hip replacement surgery, the testatrix was con­fused for awhile and needed full-time nurs­ing care. The nieces discovered $9,000 in cheques written in favour of the testatrix's family doctor, a close friend. The nieces filed a criminal complaint and a complaint with the Nova Scotia Medical Board. Neither was substantiated. The testatrix was furious and embarrassed by the nieces' interference in her financial affairs. In 1994, the testatrix executed a new will, substantially reducing what the nieces would receive under the will. The testatrix's lawyer knew that the nieces questioned the testatrix's mental capacity. The lawyer had a psychiatrist examine the testatrix and pronounce her mentally compe­tent. Other witnesses sup­ported that finding. The testatrix died in 1995 at age 87. The executors applied to prove the will in solemn form. The nieces challenged the testatrix's testamentary capac­ity.

The Nova Scotia Probate Court, in a judg­ment reported 160 N.S.R.(2d) 339; 473 A.P.R. 339, held that not only had the nieces not proved incompe­tence, the evidence proved beyond a reason­able doubt that the testatrix had testamentary capacity. The nieces applied, 2.5 months after the one month period for appealing had expired, to extend the time for filing a notice of appeal.

The Nova Scotia Court of Appeal, per Flinn, J.A., refused to extend the time to file an appeal. There was no bona fide intention to appeal within the limitation period, no reasonable excuse for the delay and the proposed grounds of appeal (undue influence and delusion or mistaken belief, but not testamentary capacity) did not raise any arguable issue.

Practice - Topic 9002

Appeals - Notice of appeal - Extension of time for filing and serving notice of appeal - Executors applied to prove a will in solemn form - The testatrix's three nieces challenged her testamentary capac­ity - The Nova Scotia Probate Court held that not only had the nieces not proved incompe­tence, the evidence proved beyond a rea­son­able doubt that the testatrix had testa­mentary capacity - The nieces applied, 2.5 months after the one month period for filing an appeal had expired, to extend the time for filing a notice of appeal - The Nova Scotia Court of Appeal, per Flinn, J.A., refused to extend the time to file an appeal - Section 140 of the Probate Court Act permitted an extension of the time period "upon special circumstances shown" - There was no bona fide intention to appeal within the limitation period, no reasonable excuse for the delay and the proposed grounds of appeal (undue influ­ence and delusion or mistaken belief) did not raise any arguable issue (the finding of testamentary capacity was not appealed).

Cases Noticed:

Blundon v. Storm (1970), 1 N.S.R.(2d) 621 (C.A.), refd to. [para. 20].

Scotia Chevrolet Oldsmobile Ltd. v. Whynot (1970), 1 N.S.R.(2d) 1041 (C.A.), refd to. [para. 22].

Tibbetts v. Tibbetts (1992), 112 N.S.R.(2d) 173; 307 A.P.R. 173 (C.A.), refd to. [para. 22].

Irving Oil Ltd. v. Sydney Engineering Inc. et al. (1996), 150 N.S.R.(2d) 29; 436 A.P.R. 29 (C.A.), refd to. [para. 25].

Maritime Co-Op Services Ltd. and Martin v. Maritime Processing Co., Hogg and Hillcrest Rent-A-Car et al. (1979), 32 N.S.R.(2d) 71; 54 A.P.R. 71 (C.A.), refd to. [para. 60].

Statutes Noticed:

Probate Act, R.S.N.S. 1989, c. 359, sect. 134(1) [para. 3]; sect. 140 [para. 18].

Counsel:

Jean A. McKenna, for the applicants;

Peter M.S. Bryson, for the respondents.

This application was heard on November 6, 1997, before Flinn, J.A., of the Nova Scotia Court of Appeal, who delivered the following judgment on November 12, 1997.