Robitaille v. Robitaille Estate, (2011) 303 N.S.R.(2d) 238 (SC)

• Judge: LeBlanc, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: June 03, 2010
• Jurisdiction: Nova Scotia
• Citations: (2011), 303 N.S.R.(2d) 238 (SC);2011 NSSC 203

Robitaille v. Robitaille Estate (2011), 303 N.S.R.(2d) 238 (SC);

    957 A.P.R. 238

MLB headnote and full text

Temp. Cite: [2011] N.S.R.(2d) TBEd. MY.055

Colette Robitaille (applicant) v. In the Estate of Helen Patricia Robitaille (respondent)

(Hfx. No. 327095; 2011 NSSC 203)

Indexed As: Robitaille v. Robitaille Estate

Nova Scotia Supreme Court

LeBlanc, J.

May 27, 2011.

Summary:

This was an uncontested application, pursuant to s. 8A of the Wills Act, for a declaration that "a writing" was valid and fully effective even though it was not executed in compliance with the formal requirements of the Wills Act. The applicant, who was both the executor and a beneficiary of the estate, argued that the testator intended to alter her will before she died and that her intention should be recognized even though the revised will was not properly witnessed.

The Nova Scotia Supreme Court allowed the application.

Wills - Topic 536

Testamentary capacity - Evidence and proof - Presumption of testamentary capacity - [See Wills - Topic 1574 ].

Wills - Topic 541

Testamentary capacity - Evidence and proof - Doctrine of suspicious circumstances - [See Wills - Topic 1574 ].

Wills - Topic 1574

Preparation and execution - Formal validity - Testamentary intention - This was an uncontested application, under s. 8A of the Wills Act, for a declaration that "a writing" was valid and effective even though it was not executed in compliance with the formal requirements of the Wills Act - The applicant argued that the testator intended to alter her will before she died and that her intention should be recognized even though the revised will was not witnessed at the time of the testator's signature - Instead, the witnesses added their signatures after the fact - Due to its relatively recent addition, s. 8A had received minimal judicial interpretation - The Nova Scotia Supreme Court allowed the application - In all likelihood, if the testator's health had not rapidly deteriorated, the writing would have been executed in compliance with the formalities of the Act - The rebuttable presumption of testamentary capacity applied - No parties raised the issue of "suspicious circumstances" - The revised will represented a deliberate or fixed and final expression of the testator's intention to dispose of her property on death, and was substantially similar to a pre-existing will - See paragraphs 23 to 31.

Cases Noticed:

MacDonald v. MacDonald Estate (2009), 283 N.S.R.(2d) 100; 900 A.P.R. 100; 52 E.T.R.(3d) 237; 2009 NSSC 323, refd to. [para. 15].

Hayward Estate, Re (2010), 291 N.S.R.(2d) 294; 922 A.P.R. 294; 86 R.F.L.(6th) 171; 2010 NSSC 6, consd. [para. 16].

George v. Daily et al., [1997] 3 W.W.R. 379; 115 Man.R.(2d) 27; 139 W.A.C. 27; 143 D.L.R.(4th) 273 (C.A.), consd. [para. 18].

Furlotte et al. v. McAllister et al. (2005), 289 N.B.R.(2d) 148; 753 A.P.R. 148; 19 E.T.R.(3d) 282; 2005 NBQB 310 (T.D.), consd. [para. 19].

Willis Estate, Re (2009), 280 N.S.R.(2d) 87; 891 A.P.R. 87; 51 E.T.R.(3d) 304; 2009 NSSC 231, refd to. [para. 22].

Hay Estate, Re, [1995] 2 S.C.R. 876; 183 N.R. 1; 82 O.A.C. 161; 7 E.T.R.(2d) 209, refd to. [para. 22].

Vout v. Hay - see Hay Estate, Re.

Anderson Estate, Re, [2009] A.R. Uned. 406; 2009 ABQB 285; 2009 CarswellAlta 803, refd to. [para. 25].

Statutes Noticed:

Wills Act, R.S.N.S. 1989, c. 505, sect. 8A [para. 13].

Counsel:

Bianca C. Krueger, for the applicant;

Sharron Atton, Registrar of Probate, for the respondent.

This uncontested application was heard and decided on June 3, 2010, in Halifax, Nova Scotia, by LeBlanc, J., of the Nova Scotia Supreme Court, who delivered the following written decision on May 27, 2011.