Peters Estate, Re, 2015 NSSC 292

Judge:Duncan, J.
Court:Nova Scotia Probate Court
Case Date:September 29, 2015
Jurisdiction:Nova Scotia
Citations:2015 NSSC 292;(2015), 365 N.S.R.(2d) 200 (ProbCt)
 
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Peters Estate, Re (2015), 365 N.S.R.(2d) 200 (ProbCt);

    1151 A.P.R. 200

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. OC.026

In The Estate of Marian Elizabeth Peters, Deceased

(Hfx. 442105; 2015 NSSC 292)

Indexed As: Peters Estate, Re

Nova Scotia Probate Court

Duncan, J.

September 29, 2015.

Summary:

Peters executed a will. After she passed away, Peters' personal representatives found five handwritten documents in her personal effects, all in Peters' handwriting. At issue was whether the documents should be admitted to probate.

The Nova Scotia Probate Court determined that one of the documents was to be admitted.

Wills - Topic 4

Testamentary instruments - General principles - What constitutes a testamentary disposition - Peters executed a will - After she passed away, Peters' personal representatives found five handwritten documents in her personal effects, all in Peters' handwriting - At issue was whether the documents should be admitted to probate - The Nova Scotia Probate Court determined that one of the documents was to be admitted - Under s. 8A of the Wills Act, the court could declare the writings to be valid and fully effective although they were not executed in compliance with the Act - The question to be asked in relation to each document was "When the notes were prepared, did Ms. Peters believe that her existing Will was being revoked in whole or in part and that her estate would be disposed of according to the note?" - The applicants had to satisfy the court, on the balance of probabilities, that the specified document embodied Peters' testamentary intention - Notes 1 and 2 were, at best, statements of intention and advice and were not admitted as they were not intended to be testamentary dispositions - Notes 4 and 5 were not admitted as they predated Peters' existing will - Note 3 had a degree of formality that was different from the others - The list of gifts of personal effects in Note 3 was intended to be both fixed and final - It was clearly a testamentary disposition and was admitted.

Wills - Topic 1573

Preparation and execution - Formal validity - Curing of irregularity - [See Wills - Topic 4 ].

Wills - Topic 1574

Preparation and execution - Formal validity - Testamentary intention - [See Wills - Topic 4 ].

Cases Noticed:

Gray Estate, Re, [1958] S.C.R. 392, refd to. [para. 18].

Ward v. Stevenson (1910), 21 O.L.R. 289, refd to. [para. 20].

Snow Estate, Re, [1932] 1 W.W.R. 473, refd to. [para. 20].

Fitzsimmons Estate, Re, [1939] 2 D.L.R. 50 (N.S.C.A.), refd to. [para. 20].

Fong Estate, Re (2011), 306 N.S.R.(2d) 370; 968 A.P.R. 370; 2011 NSSC 315 (Prob. Ct.), refd to. [para. 22].

Komonen v. Fong - see Fong Estate, Re.

Counsel:

Joseph S. Roza, for the applicants.

This application was heard at Halifax, N.S., on September 29, 2015, by Duncan, J., of the Nova Scotia Probate Court, who delivered the following decision orally on September 29, 2015, and in writing on October 13, 2015.

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