Perry v. Mercer, (1971) 2 Nfld. & P.E.I.R. 45 (NFSC)

• Judge: Higgins, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: April 07, 1971
• Jurisdiction: Newfoundland and Labrador
• Citations: (1971), 2 Nfld. & P.E.I.R. 45 (NFSC)

Perry v. Mercer (1971), 2 Nfld. & P.E.I.R. 45 (NFSC)

MLB headnote and full text

Perry v. Mercer

Indexed As: Perry v. Mercer

Newfoundland Supreme Court

At Trial

Higgins, J.

April 7, 1971.

Summary:

Trial court granted the application and admitted the will of the deceased to probate. Plaintiff was executrix of the will which was executed by the deceased one month after the execution of a prior will in which the defendant was named executor. The last will charged the plaintiff with duties which were to be discharged during the deceased's lifetime. Defendant opposed probate on the grounds inter alia that the document was a mere power of attorney and that undue influence was exerted on the deceased.

Trial Court held that the onus on the defendant of proving undue influence was not discharged. Trial Court held further that the clauses charging the plaintiff with duties to be discharged during the deceased's lifetime were severable and that the will was of a form which entitled the plaintiff to have the will admitted to probate.

Wills - Topic 1714

Undue influence - Evidence - Allegations of undue influence made by party opposing probate - Requirement of positive proof - Onus of proof of undue influence not discharged - Will admitted to probate (Newfoundland Supreme Court).

Wills - Topic 1714

Form - Will containing clauses operating before death - Clauses severable - Will admitted to probate (Newfoundland Supreme Court).

Cases Noticed:

Hall v. Hall, L.R. 1 P. & D. 482, appld.

Craig v. Lamoureux, [1920] A.C. 349, appld.

Herbert v. Christopherson, [1930] 1 Ch. 407, refd to.

Riach v. Ferris, [1934] S.C.R. 725, refd to.

Counsel:

Wayne F. Spracklin, for the Plaintiff;

Peter W. Strong, for the Defendant.