Nickerson Estate, Re, (1996) 155 N.S.R.(2d) 289 (ProbCt)
Judge | Tidman, J. |
Court | Probate Court of Nova Scotia (Canada) |
Case Date | July 25, 1996 |
Jurisdiction | Nova Scotia |
Citations | (1996), 155 N.S.R.(2d) 289 (ProbCt) |
Nickerson Estate, Re (1996), 155 N.S.R.(2d) 289 (ProbCt);
457 A.P.R. 289
MLB headnote and full text
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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...leave to appeal refused (2010), 409 N.R. 386; 299 B.C.A.C. 321; 508 W.A.C. 321 (S.C.C.), refd to. [para. 78]. Nickerson Estate, Re (1996), 155 N.S.R.(2d) 289; 457 A.P.R. 289 (Prob. Ct.), refd to. [para. Casavechia v. Noseworthy et al. (2015), 362 N.S.R.(2d) 64; 1142 A.P.R. 64; 2015 NSCA 56,......
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...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. MacKenzie v. MacKenzie Estate (1998), 169 N.S.R.(2d) 224; 508 A.P.R. 224 (C.A.), refd to......
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Wittenberg Estate, Re, (2015) 364 N.S.R.(2d) 176 (CA)
...leave to appeal refused (2010), 409 N.R. 386; 299 B.C.A.C. 321; 508 W.A.C. 321 (S.C.C.), refd to. [para. 78]. Nickerson Estate, Re (1996), 155 N.S.R.(2d) 289; 457 A.P.R. 289 (Prob. Ct.), refd to. [para. Casavechia v. Noseworthy et al. (2015), 362 N.S.R.(2d) 64; 1142 A.P.R. 64; 2015 NSCA 56,......
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Morash Estate, Re, (2002) 209 N.S.R.(2d) 288 (ProbCt)
...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. MacKenzie v. MacKenzie Estate (1998), 169 N.S.R.(2d) 224; 508 A.P.R. 224 (C.A.), refd to......