Sweeney Cunningham Estate, Re, (2013) 335 N.S.R.(2d) 40 (SC)
| Judge | Wright, J. |
| Court | Supreme Court of Nova Scotia (Canada) |
| Case Date | September 19, 2013 |
| Jurisdiction | Nova Scotia |
| Citations | (2013), 335 N.S.R.(2d) 40 (SC);2013 NSSC 299 |
Sweeney Cunningham Estate, Re (2013), 335 N.S.R.(2d) 40 (SC);
1060 A.P.R. 40
MLB headnote and full text
Temp. Cite: [2013] N.S.R.(2d) TBEd. OC.021
Katherine Patricia Marilyn Sweeney and Laurence Kent Sweeney as Executors of the Estate of the late Mary Sweeney Cunningham (applicants) v. Kevin John Sweeney and James Patrick Trefry-Sweeney (respondents)
(Yar. No. 417844; 2013 NSSC 299)
Indexed As: Sweeney Cunningham Estate, Re
Nova Scotia Supreme Court
Wright, J.
October 7, 2013.
Summary:
The late Mary Sweeney Cunningham signed a will on February 17, 2009, but the signing was witnessed by only one person. Because the formal requirements for the execution of a will under the Wills Act were not fully complied with, the executors named in the will applied under s. 8A of the Act for a declaration that the will embodied the testamentary intentions of the deceased.
The Nova Scotia Supreme Court granted the application.
Courts - Topic 6023
Provincial Courts - Nova Scotia - Supreme Court - Jurisdiction - General - [See Courts - Topic 6125 ].
Courts - Topic 6125
Provincial courts - Nova Scotia - Probate Court - Jurisdiction - General - The deceased had signed a will on February 17, 2009, but the signing was witnessed by only one person - Because the formal requirements for the execution of a will under the Wills Act were not fully complied with, the executors applied under s. 8A of the Act for a declaration that the will embodied the testamentary intentions of the deceased - The Nova Scotia Supreme Court held that the Supreme Court of Nova Scotia had concurrent jurisdiction with the Probate Court to decide applications under s. 8A of the Wills Act - See paragraphs 5 to 7.
Wills - Topic 1557
Preparation and execution - Attestation - Signature of attesting witnesses - [See Wills - Topic 1574 ].
Wills - Topic 1573
Preparation and execution - Formal validity - Curing of irregularity - [See Courts - Topic 6125 and Wills - Topic 1574 ].
Wills - Topic 1574
Preparation and execution - Formal validity - Testamentary intention - The deceased had signed a will on February 17, 2009, but the signing was witnessed by only one person - Because the formal requirements for the execution of a will under the Wills Act were not fully complied with, the executors named in the will applied under s. 8A of the Act for a declaration that the will embodied the testamentary intentions of the deceased - The Nova Scotia Supreme Court granted the application - The revised will executed on February 17, 2009 (as complemented by a trust signed by the deceased on same date) represented a deliberate or fixed and final expression of the deceased's intention to dispose of her property upon her death as therein specified - The court rejected the respondent's argument that the court should infer that the deceased had a change of heart since she had been advised by her lawyer that the execution of her new will was defective and thereby invalid, and she then failed to re-execute the will properly before she died four years later - There was persuasive evidence that the writing embodied the testamentary intentions of the deceased - There was no evidence that the testatrix did or said anything subsequently to displace that intention and it could not be inferred otherwise by inattention over the passage of time - See paragraphs 8 to 30.
Cases Noticed:
MacDonald v. MacDonald Estate (2009), 283 N.S.R.(2d) 100; 900 A.P.R. 100 (S.C.), refd to. [para. 7].
Robitaille v. Robitaille Estate (2011), 303 N.S.R.(2d) 238; 957 A.P.R. 238; 2011 NSSC 203, refd to. [para. 24].
Fong Estate, Re (2011), 306 N.S.R.(2d) 370; 968 A.P.R. 370; 2011 NSSC 315, refd to. [para. 24].
George v. Daily et al. (1997), 115 Man.R.(2d) 27; 139 W.A.C. 27 (C.A.), refd to. [para. 24].
Statutes Noticed:
Probate Court Act, S.N.S. 2000, c. 31, sect. 31(1) [para. 5].
Wills Act, R.S.N.S. 1989, c. 505, sect. 8A [para. 21].
Counsel:
Timothy C. Matthews, Q.C., for the applicants;
James Patrick Trefry-Sweeney and Blaine G. Schumacher, for the respondent.
This application was heard on September 19, 2013, at Yarmouth, Nova Scotia, before Wright, J., of the Nova Scotia Supreme Court, who delivered the following decision on October 7, 2013.
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