Thoms v. Thoms, (1985) 68 N.S.R.(2d) 30 (CA)

• Judge: Macdonald, Pace and Matthews, JJ.A.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: May 10, 1985
• Jurisdiction: Nova Scotia
• Citations: (1985), 68 N.S.R.(2d) 30 (CA)

Thoms v. Thoms (1985), 68 N.S.R.(2d) 30 (CA);

    159 A.P.R. 30

MLB headnote and full text

Thoms v. Thoms

(S.C.A. 01384)

Indexed As: Thoms v. Thoms

Nova Scotia Supreme Court

Appeal Division

Macdonald, Pace and Matthews, JJ.A.

May 10, 1985.

Summary:

The Nova Scotia Probate Court, in a decision unreported in this series of reports, refused to probate the testatrix' will in solemn form and revoked the probate granted in common form, on the ground that the testatrix lacked testamentary capacity when the will was executed. The executor and sole beneficiary under the will appealed.

The Nova Scotia Supreme Court, Appeal Division, dismissed the appeal.

Wills - Topic 549

Testamentary capacity - Evidence and proof - Appeals respecting fact findings - The Nova Scotia Court of Appeal refused to overturn a trial judge's fact finding that a testator lacked testamentary capacity, because he made no "palpable and overriding error which affected his assessment of the facts".

Cases Noticed:

Re Fergusson's Will (1981), 43 N.S.R.(2d) 89; 81 A.P.R. 89, refd to. [para. 5].

Re Morrison Estate (1982), 52 N.S.R.(2d) 640; 106 A.P.R. 640, refd to. [para. 6].

Stein v. The Ship "Kathy K", [1976] 2 S.C.R. 802; 4 N.R. 381, appld. [para. 5].

Counsel:

Frank L. Elman, Q.C., and Keith N. Anderson, for the appellant;

Nash T. Brogan, for the respondent.

This appeal was heard before Macdonald, Pace and Matthews, JJ.A., of the Nova Scotia Supreme Court, Appeal Division, on April 10, 1985.

The decision of the Court of Appeal was delivered by Pace, J.A., on May 10, 1985.