Nickerson Estate, Re, (1996) 155 N.S.R.(2d) 289 (ProbCt)

Judge:Tidman, J.
Court:Nova Scotia Probate Court
Case Date:July 25, 1996
Jurisdiction:Nova Scotia
Citations:(1996), 155 N.S.R.(2d) 289 (ProbCt)
 
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Nickerson Estate, Re (1996), 155 N.S.R.(2d) 289 (ProbCt);

    457 A.P.R. 289

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In The Estate of Margaret Belle Nickerson, deceased

(A1575)

Indexed As: Nickerson Estate, Re

Nova Scotia Probate Court

Tidman, J.

November 6, 1996.

Summary:

A testatrix was murdered by her son, a beneficiary under her will. The son was found not guilty by reason of insanity. Prior to her death, the testatrix changed her will to provide, inter alia, that her son's share of the estate be paid to him outright rather than held in trust. The testatrix's daughter alleged that her brother exerted undue influence upon their mother to change her will.

The Nova Scotia Probate Court held that undue influence was not established on a balance of probabilities.

Wills - Topic 1702

Preparation and execution - Undue influ­ence - Requirement of coercion - [See Wills - Topic 1704 ].

Wills - Topic 1704

Preparation and execution - Undue influ­ence - What constitutes - General - A testatrix was murdered by her son, a bene­ficiary under her will, who was found not guilty by reason of insanity - The testatrix's daughter alleged that her brother exerted undue influence on their mother to change her will - The son could be intimidating - The Nova Scotia Probate Court held that undue influence was not established on a balance of probabilities - Coercion was not established - The court underlined that the son did not withhold care for his mother nor physically abuse her; the testatrix was not afraid of her son; the testatrix voluntarily changed her will after having discussed the changes with her lawyer; reassured that a guardian could be appointed for her son, the testatrix changed her will but did not accede to all of her son's wishes - See paragraphs 13 to 23.

Wills - Topic 1714

Preparation and execution - Undue influ­ence - Evidence - The Nova Scotia Probate Court underlined that the burden of proving undue influence is upon those who allege it, on a balance of probabilities - See paragraphs 13 to 15.

Cases Noticed:

Marsh Estate, Re (1990), 99 N.S.R.(2d) 221; 270 A.P.R. 221 (Prob. Ct), refd to. [para. 13].

Harmes Estate, Re, [1946] 3 D.L.R. 497 (P.C.), refd to. [para. 13].

Authors and Works Noticed:

Feeney, Thomas G., The Canadian Law of Wills (3rd Ed. 1987), p. 42 [para. 16].

Counsel:

Joel E. Pink, Q.C., for Allen Nickerson;

Sandra MacPherson Duncan, for Carol Law.

This application was heard at Yarmouth, Nova Scotia, on July 25, 1996, before Tidman, J., of the Nova Scotia Probate Court, who rendered the following judgment on November 6, 1996.

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