Tucker Estate, Re, (1993) 126 N.S.R.(2d) 201 (ProbCt)

JudgeMacDonnell, J.
CourtNova Scotia Probate Court
Case DateNovember 09, 1993
JurisdictionNova Scotia
Citations(1993), 126 N.S.R.(2d) 201 (ProbCt)

Tucker Estate, Re (1993), 126 N.S.R.(2d) 201 (ProbCt);

  352 A.P.R. 201

MLB headnote and full text

In The Matter Of The Estate of Harry William Tucker (deceased)

(No. 17,772)

Indexed As: Tucker Estate, Re

Nova Scotia Probate Court

MacDonnell, J.

November 10, 1993.

Summary:

An executor applied for proof in solemn form of the alleged will of the deceased. The will contained a clause distributing the balance of the deceased's estate in accord­ance with a list filed with the will.

The Nova Scotia Probate Court admitted the will to probate, excluding the list.

Wills - Topic 8

Testamentary instruments - General principles - Incorporation by reference - A will instructed the trustee to distribute the residue of his estate "... in accordance with a list made and signed by me prior hereto and filed with this My Will ..." - Although instructed that the list had to predate the will, the deceased executed the will without having a list with him - Three sheets of paper containing a list of articles and names were in the envelope with the will - The second sheet was signed with the deceased's first name - Evidence that after the will was executed, the deceased made a list of dispositions - The Nova Scotia Probate Court refused to incorporate the sheets into the will where the reference was insufficient to identify them.

Statutes Noticed:

Intestate Succession Act, R.S.N.S. 1989, c. 236, generally [para. 22].

Probate Act, R.S.N.S. 1989, c. 359, sect. 36 [para. 1].

Wills Act, R.S.N.S. 1989, c. 505, sect. 6, sect. 6(a), sect. 6(b), sect. 6(c) [para. 11].

Authors and Works Noticed:

Feeney, Thomas G., The Canadian Law of Wills (3rd Ed. 1987), p. 161 [para. 14].

Hull and Cullity, Probate Practice (3rd Ed. 1981), p. 77 [para. 13].

Sheard, Hull, Fitzpatrick, Canadian Form of Wills (4th Ed. 1982), p. 141 [para. 12].

Counsel:

Paul Graham, for the petitioner and execu­tor.

This application was heard at Pictou, Nova Scotia, on November 9, 1993, before Mac­Donnell, J., of the Nova Scotia Probate Court, who delivered judgment on November 10, 1993.

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