Morash Estate, Re, (2002) 209 N.S.R.(2d) 288 (ProbCt)
|Court:||Nova Scotia Probate Court|
|Case Date:||November 07, 2002|
|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:  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
November 7, 2002.
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 ].
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,  S.C.R. 152, refd to. [para. 15].
Hay Estate, Re,  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,  2 S.C.R. 353; 127 N.R. 241; 125 A.R. 81; 14 W.A.C. 81, refd to. [para. 15].
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.
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