Thomas Estate, Re, (2008) 268 N.S.R.(2d) 33 (ProbCt)

• Judge: Stewart, J.
• Court: Probate Court of Nova Scotia (Canada)
• Case Date: February 01, 2008
• Jurisdiction: Nova Scotia
• Citations: (2008), 268 N.S.R.(2d) 33 (ProbCt);2008 NSSC 89

Thomas Estate, Re (2008), 268 N.S.R.(2d) 33 (ProbCt);

    857 A.P.R. 33

MLB headnote and full text

Temp. Cite: [2008] N.S.R.(2d) TBEd. AP.018

Shelley Brown (plaintiff) v. Margaret E. Williams, as Executrix of the Last Will and Testament of the late, Q. Maureen Thomas, deceased (defendant)

(13787; 2008 NSSC 89)

Indexed As: Thomas Estate, Re

Nova Scotia Probate Court

Stewart, J.

February 22, 2008.

Summary:

This was an application for Proof in Solemn Form of a will.

The Nova Scotia Probate Court admitted the will to probate.

Wills - Topic 302

Testamentary capacity - General principles - What constitutes - [See Wills - Topic 405 ].

Wills - Topic 405

Testamentary capacity - Mental disabilities - Delusions - What constitutes - Affecting capacity - The testatrix died in February 2007, aged 71 - She had three children: a son and two daughters - In 2005, she made a will giving her entire estate to one granddaughter - In January 2006, she made a new will, giving her house to her son, who had returned home to take care of her, and splitting the residue of her estate between her three grandchildren - In June 2006, the testatrix made a new will to add her son to the residual legatees, but leaving the rest of her directions unchanged - Also, a new clause read as follows: "The manner in which I have been treated by my other children precludes me from benefiting them under my will" - A daughter challenged the testatrix's mental capacity to make the third will - The Nova Scotia Probate Court admitted the will to probate - The testatrix was anything but vulnerable and afraid - She was happy, living in her own home with a "caring and loving son", whom she had to place in foster care in childhood, and his family - The testatrix was not self medicating, not suicidal, not drinking, had the benefit of structured pain management, and had supportive independent professional sources in whom she confided - She had legitimate concerns around the conduct of her daughters, that were not delusions - She appreciated who her beneficiaries were and knew what her estate consisted of and its value - She made decisive, rational, considered decisions against an informed statement of the law - The testatrix assessed her circumstances, did not waiver in her opinion respecting her daughters' conduct and determined, if anything, the situation warranted her showing appreciation by benefiting her son as a residual beneficiary, without excluding those considered in her earlier January, 2006, will - She had the testamentary capacity to execute the June 2006 will - She was not suffering from insane delusions, delusions or delusional thinking at the time of making her will or, for that matter, at any point - She was competent to make a valid will and did so - See paragraphs 1 to 48.

Cases Noticed:

Banks v. Goodfellow, [1861-73] All E.R. Rep. 47 (Q.B.), refd to. [para. 6].

Smee v. Smee (1879), 5 P.D. 84 (Probate), refd to. [para. 6].

Hay Estate, Re, [1995] 2 S.C.R. 876; 183 N.R. 1; 82 O.A.C. 161, refd to. [para. 10].

Counsel:

Timothy Matthews, Q.C., for the plaintiff;

Jeanne Desveaux, for the defendant;

Nancy Peers, for person of interest, Oliver Shane Thomas.

This application was heard on January 31 and February 1, 2008, at Bridgewater, N.S., by Stewart, J, of the Nova Scotia Probate Court. Final submissions were made on February 15, 2008. Stewart, J., delivered the following decision on February 22, 2008.