Sherman Estate v. Sherman et al., (1989) 74 Sask.R. 246 (QB)

• Judge: Wright, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: January 30, 1989
• Jurisdiction: Saskatchewan
• Citations: (1989), 74 Sask.R. 246 (QB)

Sherman Estate v. Sherman (1989), 74 Sask.R. 246 (QB)

MLB headnote and full text

Norman Wilbert Sherman as Executor of the Last Will and Testament of Mildred Sherman v. Ralph Sherman, Kenneth Sherman and Ula Sherman

(No. 5308 A.D. 1986)

Indexed As: Sherman Estate v. Sherman et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Wright, J.

January 30, 1989.

Summary:

An old woman executed a will in 1978 benefitting her four children. In 1979 she executed another will benefitting only two of her children. After she died in 1986 and the will was proved in common form one of the children alleged that she lacked testamentary capacity when she made the last will.

The Saskatchewan Court of Queen's Bench ruled that there was no evidence that she lacked capacity and that the last will was valid.

Wills - Topic 534

Testamentary capacity - Evidence - Burden of proof - General - An old woman executed a will in 1979 and died in 1986 - The Saskatchewan Court of Queen's Bench in ruling that the testatrix had testamentary capacity when she made her will held that the burden of proof of testamentary capacity on the executor was on a balance of the probabilities, a relative proof test which varied with the degree of suspicion raised - The court also questioned the fairness of the executor having to be the plaintiff with the attendant burden of proof when someone else is alleging lack of capacity, even fraud.

Cases Noticed:

Robins v. National Trust Co. Ltd. et al., [1927] 2 D.L.R. 97, not field. [para. 6].

Boughton and Marston v. Knight et al. (1873), 3 P. & D. 64, not field. [para. 7].

Re Barter, [1939] 2 D.L.R. 201, not field. [para. 8].

Leger et al. v. Poirier, [1944] 3 D.L.R. 1, not field. [para. 9].

Murphy v. Lamphier (1914), 31 O.L.R. 287, not field. [para. 9].

Re Sample Estate, [1955] 3 D.L.R. 199, appld. [para. 10].

Hanes v. Wawanesa Mutual Insurance Company, [1963] S.C.R. 154, consd. [para. 12].

Smith v. Smith and Smedman, [1952] 2 S.C.R. 312, consd. [para. 12].

Re: Trevethick; Scott v. Mahan, [1975] 1 W.W.R. 703, appld. [para. 13].

Hrycan v. Hrycan (1986), 49 Sask.R. 277, appld. [para. 13].

Authors and Works Noticed:

Feeney, The Canadian Law of Wills, vol. 1, p. 28 [para. 8].

Theobald on Wills (14th Ed.), p. 36 [para. 12].

Counsel:

Reginald A. Watson, for the plaintiff;

Daniel S. Tapp, for the defendants.

This case was heard at Regina, Saskatchewan before Wright, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following judgment on January 30, 1989: