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

• Judge: MacDonnell, J.
• Court: Probate Court of Nova Scotia (Canada)
• Case Date: November 09, 1993
• Jurisdiction: Nova 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.