McQuaid Estate, Re, (1990) 85 Nfld. & P.E.I.R. 252 (PEITD)

• Judge: Mullally, J.
• Case Date: August 14, 1990
• Jurisdiction: Prince Edward Island
• Citations: (1990), 85 Nfld. & P.E.I.R. 252 (PEITD)

McQuaid Estate, Re (1990), 85 Nfld. & P.E.I.R. 252 (PEITD);

    266 A.P.R. 252

MLB headnote and full text

In The Matter Of the Estate of J. Alexius McQuaid, late of Clyde River, Queens County, Province of Prince Edward Island, retired, deceased, testate

(No. 134 McQ)

Indexed As: McQuaid Estate, Re

Prince Edward Island Supreme Court

Trial Division

Mullally, J.

August 14, 1990.

Summary:

The executor of an old man's will applied to prove the will in solemn form. The capacity of the testator was in issue.

The Prince Edward Island Supreme Court, Trial Division, allowed the application and admitted the will to probate.

Wills - Topic 305

Testamentary capacity - General principles - Requirement that testator understand what is being done - When he was 67 a man suffered a mild to moderate stroke and was subsequently declared by two psychiatrists to be incapable of managing his affairs - Thereafter the Official Trustee man aged his affairs - However, he continued to live alone and to deal with his property and people in a rational manner, much galled by the requirement that the Official Trustee approve his doings - Three years after his stroke he made a will disposing of his property rationally and with under standing of what he owned and what his moral obligations were - The Prince Edward Island Supreme Court, Trial Division, found that the man had testamentary capacity and admitted the will to probate.

Wills - Topic 534

Testamentary capacity - Evidence - Burden of proof - General - The Prince Edward Island Supreme Court, Trial Division, stated that the burden of proof of testamentary capacity is on the propounder of the will and that the burden is heavier when the testator is found to be incapable of managing his affairs when the will was made - See paragraph 51.

Wills - Topic 545

Testamentary capacity - Evidence - Declaration that testator incompetent to manage his affairs - [See Wills - Topic 305].

Cases Noticed:

Doiron, Re (1980), 27 Nfld. & P.E.I.R. 211; 74 A.P.R. 211, appld. [para. 45].

Lavers, Re (1973), 3 Nfld. & P.E.I.R. 177, appld. [para. 46].

MacKenzie, Re, [1946] 1 D.L.R. 388 (Ont. C.A.), appld. [para. 48].

Ferguson, Re (1962), 48 M.P.R. 154, appld. [para. 50].

Royal Trust Company, Rampone and Christie v. Rampone, Gable, Simeon, Christie et al., [1974] 4 W.W.R. 735 (B.C.S.C.), appld. [para. 51].

Gregory, Re (1979), 37 N.S.R.(2d) 640; 67 A.P.R. 640, appld. [para. 53].

Statutes Noticed:

Mental Health Act, R.S.P.E.I. 1974, c. M-9, sect. 30 [para. 11].

Counsel:

Shawn A. Murphy, for the propounder;

M. Lynn Murray, for the caveators.

This case was heard on November 2-3, 1989, and April 9-11, 20, 1990, at Charlottetown, Prince Edward Island, before Mullally, J., of the Prince Edward Island Supreme Court, Trial Division, who delivered the following judgment on August 14, 1990: