Stirling Estate, Re, (1993) 134 N.B.R.(2d) 17 (CA)

• Judge: Hoyt, C.J.N.B., Rice and Ayles, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: March 12, 1993
• Jurisdiction: New Brunswick
• Citations: (1993), 134 N.B.R.(2d) 17 (CA)

Stirling Estate, Re (1993), 134 N.B.R.(2d) 17 (CA);

    134 R.N.-B.(2e) 17; 342 A.P.R. 17

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Henry J. Marquis, Q.C., and Esther O'Connor (appellants) v. George D. Weston (respondent)

(113/92/CA)

Canadian Cancer Society, Heart and Stroke Foundation of Canada, Canadian Diabetes Association and St. Andrew and St. David's United Church (appellants) v. George D. Weston (respondent)

(122/92/CA)

Indexed As: Stirling Estate, Re

New Brunswick Court of Appeal

Hoyt, C.J.N.B., Rice and Ayles, JJ.A.

March 12, 1993.

Summary:

After suffering two severe heart attacks an old woman summoned her lawyer, who prepared a will at her bedside in hospital. She died a couple of days later. When her executors submitted the will to probate, one of the beneficiaries challenged her testamen­tary capacity.

The New Brunswick Probate Court in a judgment previously unreported in this series of reports, but included in full at paragraph 20 below, refused to admit the will to pro­bate on the ground that the woman had a sound, but not a disposing, mind, when she executed her will. The executors and the other major beneficiaries appealed.

The New Brunswick Court of Appeal allowed the appeal and admitted the will to probate.

Practice - Topic 8800

Appeals - General principles - Duty of appeal court regarding fact findings by trial judge - [See Wills - Topic 303 ].

Wills - Topic 303

Testamentary capacity - General principles - Tests for determining capacity - After two heart attacks four days apart an old woman summoned her lawyer and best friend for the purpose of preparing a will -After one will was made, she realized that she had forgotten some matters and an­other was made next day - Lay witnesses who saw her thought she was competent; medical witnesses, who did not see her but testified from the medical records, felt she could not have been - The New Bruns­wick Court of Appeal reversed the Probate Court and admitted the will to probate on the strength of the lay witnesses obser­vations that she sufficiently comprehended her property, objects, just claims to con­sideration, revocation of existing disposi­tions, etc.

Wills - Topic 534

Testamentary capacity - Evidence - Onus of proof - General - The New Brunswick Court of Appeal held that the burden on the proponents of a will was to establish testamentary capacity on a balance of probabilities, not beyond a reasonable doubt - See paragraph 36.

Wills - Topic 539

Testamentary capacity - Evidence - Lay opinions - Weight to be given to - [See Wills - Topic 303 ].

Wills - Topic 549

Testamentary capacity - Evidence - Ap­peals respecting fact findings - [See Wills - Topic 303 ].

Cases Noticed:

Stein Estate v. Ship Kathy K, [1976] 2 S.C.R. 802; 6 N.R. 359; 62 D.L.R.(3d) 1, appld. [para. 23].

Fletcher v. Manitoba Public Insurance Corp., [1990] 3 S.C.R. 191; 116 N.R. 1; 71 Man.R.(2d) 81; 74 D.L.R.(4th) 636; 44 O.A.C. 81, appld. [para. 23].

Lapointe v. Hôpital Le Gardeur, [1992] 1 S.C.R. 351; 133 N.R. 153; 45 Q.A.C. 299, appld. [para. 23].

MacGregor v. Ryan, [1965] S.C.R. 757, appld. [para. 24].

Leger et al. v. Poirier, [1944] S.C.R. 152, appld. [paras. 24, 26].

Murphy v. Lamphier (1914), 31 O.L.R. 287, consd. [para. 27].

Breidenbach Estate, Re (1956), 19 W.W.R.(N.S.) 109, consd. [para. 27].

Banks v. Goodfellow (1870), L.R. 5 Q.B. 549, consd. [para. 27].

Schwartz, Re (1970), 10 D.L.R.(3d) 15, appld. [para. 31].

Davis, Re (1963), 40 D.L.R.(2d) 801, appld. [para. 31].

Counsel:

William T. Grant, for the appellant execu­tors;

Rodney J. Gillis, Q.C., and Anne MacNeill, for the respondent Weston;

Norman Bosse, for the appellant institu­tions.

This case was heard on November 19, 1992, at Fredericton, N.B., before Hoyt, C.J.N.B., Rice and Ayles, JJ.A., of the New Brunswick Court of Appeal.

On March 12, 1993, Hoyt, C.J.N.B., deliv­ered the following judgment for the Court of Appeal: