Massey Estate, Re, (1997) 160 N.S.R.(2d) 339 (ProbCt)

• Judge: Hall, J.
• Court: Probate Court of Nova Scotia (Canada)
• Case Date: May 12, 1997
• Jurisdiction: Nova Scotia
• Citations: (1997), 160 N.S.R.(2d) 339 (ProbCt)

Massey Estate, Re (1997), 160 N.S.R.(2d) 339 (ProbCt);

    473 A.P.R. 339

MLB headnote and full text

Temp. Cite: [1997] N.S.R.(2d) TBEd. JL.006

In The Matter Of the Estate of Lucy A. Massey, late of Wolfville, in the County of Kings, Province of Nova Scotia, deceased.

(P. No. 10,567)

Indexed As: Massey Estate, Re

Nova Scotia Probate Court

Hall, J.

May 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 executor applied to prove the will in solemn form. The nieces challenged the testatrix's 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.

Wills - Topic 404

Testamentary capacity - Mental disabilities - Delusions - The Nova Scotia Probate Court stated that "a testator may be mis­taken as to a belief in certain facts, but so long as the belief is not the result of insane delusions or brought about by fraud, undue influence, or other misconduct, the mistaken belief will not affect the validity of the will" - See paragraph 47.

Wills - Topic 534

Testamentary capacity - Evidence and proof - Onus of proof - General - The testatrix's wills in 1986, 1989 and 1990 left the $1,000,000 residue of her estate to her three nieces - After 1993 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 - The tes­tatrix's lawyer, knowing that the nieces questioned the testatrix's mental capacity, 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 executor applied to prove the will in sol­emn form - The nieces challenged the tes­tatrix's 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.

Cases Noticed:

Banks v. Goodfellow (1870), L.R. 5 Q.B. 549, refd to. [para. 31].

Boughton v. Knight (1873), L.R. 3 P. & D. 62, refd to. [para. 40].

MacLeod Estate, Re (1989), 94 N.S.R.(2d) 148; 247 A.P.R. 148 (Prob. Ct.), refd to. [para. 40].

Craig v. Lamoureux, [1920] A.C. 349 (P.C.), refd to. [para. 42].

Pocock v. Pocock, [1950] O.R. 734 (H.C.), refd to. [para. 45].

Counsel:

Peter M.S. Bryson, for the proponents;

Heidi Foshay Kimball and Nash Brogan, for the opponents.

This application was heard on December 9-11, 1996, at Kentville, N.S., before Hall, J., of the Nova Scotia Probate Court, who delivered the following judgment on May 12, 1997.