Morash Estate, Re, (2002) 209 N.S.R.(2d) 288 (ProbCt)

• Judge: Hall, J.
• Court: Probate Court of Nova Scotia (Canada)
• Case Date: November 07, 2002
• Jurisdiction: Nova Scotia
• Citations: (2002), 209 N.S.R.(2d) 288 (ProbCt);2002 NSSC 244

Morash Estate, Re (2002), 209 N.S.R.(2d) 288 (ProbCt);

 656 A.P.R. 288

MLB headnote and full text

Temp. Cite: [2002] N.S.R.(2d) TBEd. NO.021

In The Matter Of The Estate of Flora Evangeline Morash, Late of Blue Rocks, in the County of Lunenburg, Province of Nova Scotia, Deceased

(Estate No. 12,408; 2002 NSSC 244)

Indexed As: Morash Estate, Re

Nova Scotia Probate Court

Hall, J.

November 7, 2002.

Summary:

An application was made for proof in solemn form of the testatrix's purported will. A daughter, disinherited by a change in wills one year before the testatrix died, submitted that the testatrix lacked testamentary capacity due to mental incompetence and was sub­jected to undue influence from her second husband, the daughter's step-father.

The Nova Scotia Probate Court denied probate. The testatrix lacked testamentary capacity to execute the will. Further, it was the product of undue influence exerted by her second husband.

Wills - Topic 412

Testamentary capacity - Mental disabilities - Disorder of the mind (incl. Alzheimer's disease) - In 1999, the 81 year old Morash and her second husband made new wills, disinheriting her daughter - Morash was physically frail and had Alzheimer's - Morash died one year later - The husband died several months before - The first lawyer approached questioned Morash's testamentary capacity and referred them to a second lawyer, who drafted new wills - The husband initiated the changes - Morash was not questioned independently and proper inquiry into the property in her estate was not made - Morash first refused to execute the will, not wishing to disin­herit her only daughter - Morash subsequently executed the will - The rea­son stated for changing the will was the daughter's lack of visits and her substantial debt to Morash and the husband - Both were untrue - The Nova Scotia Probate Court denied probate - The doctrine of suspicious circumstances applied and the propounders of the will failed to discharge the burden of proving testamentary capaci­ty - Further, the court held that the will was invalid where Morash was unduly influenced by her dominating husband to change her will to reflect his wishes, not hers.

Wills - Topic 541

Testamentary capacity - Evidence and proof - Doctrine of suspicious circum­stances - [See Wills - Topic 412 ].

Wills - Topic 1704

Preparation and execution - Undue in­fluence - What constitutes - [See Wills - Topic 412 ].

Cases Noticed:

Banks v. Goodfellow (1870), L.R. 5 Q.B. 548, refd to. [para. 15].

Collicutt Estate, Re (1994), 128 N.S.R.(2d) 81; 359 A.P.R. 81 (S.C.), affd. (1994), 134 N.S.R.(2d) 137; 383 A.P.R. 137 (C.A.), refd to. [para. 15].

Leger v. Poirier, [1944] S.C.R. 152, refd to. [para. 15].

Hay Estate, Re, [1995] 2 S.C.R. 876; 183 N.R. 1; 82 O.A.C. 1, refd to. [para. 15].

Armitage Estate, Re (1990), 95 N.S.R.(2d) 91; 251 A.P.R. 91 (Prob. Ct. Reg.), refd to. [para. 15].

Crawford's Will, Re (1975), 8 Nfld. & P.E.I.R. 318; 8 A.P.R. 318 (Nfld. S.C.), refd to. [para. 15].

Taylor Estate v. McCully (1995), 12 E.T.R.(2d) 131 (Ont. Gen. Div.), refd to. [para. 15].

Marsh Estate, Re (1991), 104 N.S.R.(2d) 266; 283 A.P.R. 266 (C.A.), refd to. [para. 15].

Nickerson Estate, Re (1996), 155 N.S.R.(2d) 289; 457 A.P.R. 289 (Prob. Ct.), refd to. [para. 15].

MacKenzie v. MacKenzie Estate (1998), 169 N.S.R.(2d) 224; 508 A.P.R. 224 (C.A.), refd to. [para. 15].

Goodman Estate v. Geffen, [1991] 2 S.C.R. 353; 127 N.R. 241; 125 A.R. 81; 14 W.A.C. 81, refd to. [para. 15].

Counsel:

Stephen Kingston, for the Executors of the Estate of the late Flora E. Morash;

Kenneth O. Thomas, for Jane Sawler.

This case was heard on July 4-5, 2002, at Bridgewater, N.S., before Hall, J., of the Nova Scotia Probate Court, who delivered the following judgment on November 7, 2002.