McDermot v. Owens Estate, (1981) 25 Man.R.(2d) 24 (CoCt)

• Court: Provincial Court of Manitoba (Canada)
• Case Date: March 19, 1981
• Jurisdiction: Manitoba
• Citations: (1981), 25 Man.R.(2d) 24 (CoCt)

McDermot v. Owens Estate (1981), 25 Man.R.(2d) 24 (CoCt)

MLB headnote and full text

McDermot v. Owens Estate

Indexed As: McDermot v. Owens Estate

Manitoba County Court

Krindle, C.C.J.

March 19, 1981.

Summary:

An executor applied for directions respecting distribution of an estate. The will, which was probated, was ambiguous because it appeared that a portion was omitted.

The Manitoba County Court interpreted the will and directed the executor to distribute the estate accordingly.

Wills - Topic 8546

Evidence and proof - Extrinsic evidence - Of intention of testator - Drafts of will - An executor applied for directions respecting distribution of an estate - The will, which was probated, was ambiguous because it appeared that a portion was omitted - The Manitoba County Court stated that the executor must distribute in accordance with the will as probated and the intention of the testatrix must be gleaned from the words of the probated will - Therefore, the court refused to refer to earlier drafts of the will to determine the testatrix's intention - See paragraphs 9 to 11.

Wills - Topic 8546

Evidence and proof - Extrinsic evidence - Of intention of testator - Affidavit evidence - An executor applied for directions respecting distribution of an estate - The will, which was probated, was ambiguous because it appeared that a portion was omitted - The estate sought to introduce affidavit evidence of the lawyer who drafted the will to clarify the testatrix's intention - The Manitoba County Court refused to consider the affidavit - The court stated that direct evidence of intention is not generally admissible on the question of construction and the primary evidence of the testatrix's intention is the will itself - See paragraph 12.

Wills - Topic 8546

Evidence and proof - Extrinsic evidence - Of intention of testator - When admissible - The Manitoba County Court stated that in interpreting a will, direct evidence of the intention of the testator is admissible to render intelligible something in a will which is unintelligible and in circumstances of equivocation - See paragraph 13.

Cases Noticed:

R. v. Hutlett Estate, [1945] 1 W.W.R. 387, folld. [para. 12].

R. v. Brown Estate, [1920] 2 W.W.R. 226, folld. [para. 12].

Beaudry v. Barbeau, [1900] A.C. 569, folld. [para. 12].

R. v. Fleck (1925), 55 O.L.R.; affd. 55 O.L.R. 441, folld. [para. 13].

R. v. Cheadle, [1900] 2 Ch. 620 (C.A.), folld. [para. 13].

R. v. Walker (1923), 53 O.L.R. 480, folld. [para. 13].

R. v. McMillan, [1925] 3 W.W.R. 584, folld. [para. 13].

Counsel:

A.W. Eyolfson, for the executor;

M. Skwark, for Georgina Edick, Jan Mitchell, and Catherine Cartwright;

E. Lister, for Alma Dixon and Thomas W. Dixon;

Bruce McDermot in person;

Mr. Robinson, for his wife, Rita Robinson.

This application was heard before Krindle, C.C.J., of the Manitoba County Court, who delivered the following judgment on March 19, 1981: