Sutherland v. Schnare, (2015) 442 N.B.R.(2d) 363 (TD)

• Judge: Morrison, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: June 24, 2015
• Jurisdiction: New Brunswick
• Citations: (2015), 442 N.B.R.(2d) 363 (TD);2015 NBQB 202

Sutherland v. Schnare (2015), 442 N.B.R.(2d) 363 (TD);

    442 R.N.-B.(2e) 363; 1155 A.P.R. 363

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[French language version follows English language version]

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

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Temp. Cite: [2015] N.B.R.(2d) TBEd. NO.006

Renvoi temp.: [2015] N.B.R.(2d) TBEd. NO.006

Wendy Lee Sutherland aka Ashirah Yosefah (plaintiff) v. Linda Diane Schnare as Executrix of the Estate of Donald John Sutherland and Linda Diane Schnare (defendants)

(F/C/332/2014; 2015 NBQB 202; 2015 NBBR 202)

Indexed As: Sutherland v. Schnare

Répertorié: Sutherland v. Schnare

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Fredericton

Morrison, J.

October 13, 2015.

Summary:

Résumé:

Clause 3 of Sutherland's will left the residue of his estate to Schnare, who was the executrix of the will and also a witness to the will. The plaintiff commenced an action against Schnare and moved for a declaration that Clause 3 was void pursuant to s. 12(1) of the Wills Act.

The New Brunswick Court of Queen's Bench, Trial Division, allowed the motion and granted judgment in favour of the plaintiff.

Wills - Topic 1558

Preparation and execution - Attestation - By interested witness - [See Wills - Topic 1573 ].

Wills - Topic 1573

Preparation and execution - Formal validity - Curing of irregularity - Clause 3 of Sutherland's will left the residue of his estate to Schnare - The plaintiff commenced an action against Schnare and moved for a declaration that Clause 3 was void pursuant to s. 12(1) of the Wills Act because Schnare was a witness to the will - Schnare argued that s. 35.1 was a valid defence to s. 12(1) - Section 35.1 stated that a court could order that a will was valid and fully effective, notwithstanding that the document was not executed in compliance with the formal requirements imposed by the Act, if the court was satisfied that the will embodied the testamentary intentions of the deceased - At issue was whether the attestation of a beneficiary prohibited by s. 12(1) constituted a "formal requirement" - The New Brunswick Court of Queen's Bench, Trial Division, allowed the motion - Noncompliance with s. 12(1) was much more substantial than a mere irregularity, defect in form, or a failure to comply with the formal requirements stipulated in the Act - Section 12(1) itself stated that a gift to an attesting witness/beneficiary was void - Not only did this underline the fundamental policy reason for the section (i.e., the prevention of coercion), it also immunized the section from the curative provision of s. 35.1 - Section 35.1 could not revive something that was deemed to be void.

Cases Noticed:

Norris v. Lloyd's of London (1998), 205 N.B.R.(2d) 29; 523 A.P.R. 29 (C.A.), refd to. [para. 8].

Boisvert v. LeBlanc (2005), 294 N.B.R.(2d) 325; 765 A.P.R. 325; 2005 NBCA 115, refd to. [para. 8].

Clark v. Naqvi (1989), 99 N.B.R.(2d) 271; 250 A.P.R. 271 (C.A.), refd to. [para. 8].

Furlotte et al. v. McAllister et al. (2005), 289 N.B.R.(2d) 148; 753 A.P.R. 148; 2005 NBQB 310 (T.D.), refd to. [para. 13].

George v. Daily et al. (1997), 115 Man.R.(2d) 27; 139 W.A.C. 27 (C.A.), refd to. [para. 14].

Re Degrâce - see Ouellet Estate, Re.

Ouellet Estate, Re (2012), 388 N.B.R.(2d) 88; 1006 A.P.R. 88; 2012 NBQB 116 (Prob. Ct.), refd to. [para. 15].

Warren Estate, Re (1993), 112 Sask.R. 62; 1993 CarswellSask 514 (Q.B.), dist. [para. 17].

Brown Estate v. Bon et al. (2003), 263 N.B.R.(2d) 287; 689 A.P.R. 287; 2003 NBQB 236 (T.D.), folld. [para. 18].

Statutes Noticed:

Wills Act, R.S.N.B. 1973, c. W-9, sect. 12(1), sect. 35.1 [para. 11].

Counsel:

Avocats:

Leanne M. Murray, for the plaintiff;

Donald J. Stevenson, Q.C., for the Estate of Donald John Sutherland;

Allison Whitehead, Q.C., and Jennifer M. Ingram, for the defendant, Linda Diane Schnare.

This motion was heard on June 24, 2015, before Morrison, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Fredericton, who delivered the following decision on October 13, 2015.