Wamboldt v. Wamboldt Estate, (2010) 289 N.S.R.(2d) 59 (SC)

JudgeRobertson, J.
CourtSupreme Court of Nova Scotia (Canada)
Case DateMarch 04, 2010
JurisdictionNova Scotia
Citations(2010), 289 N.S.R.(2d) 59 (SC);2010 NSSC 81

Wamboldt v. Wamboldt Estate (2010), 289 N.S.R.(2d) 59 (SC);

    916 A.P.R. 59

MLB headnote and full text

Temp. Cite: [2010] N.S.R.(2d) TBEd. MR.022

Randy J. Wamboldt (applicant) v. Estate of Harry Gordon Wamboldt (respondent)

(Hfx No. 310112; Probate Ct. No. 54475; 2010 NSSC 81)

Indexed As: Wamboldt v. Wamboldt Estate

Nova Scotia Supreme Court

Robertson, J.

March 4, 2010.

Summary:

The 89 year old testator died on March 2, 2005. He suffered a stroke in August 1996 and executed a will in October 1996. It was conceded that the testator had the mental capacity to execute the will, which evenly distributed his estate among his daughter and sons. The testator's daughter became a live-in caregiver after he left the hospital. In August 2000, the testator executed a new will, drafted by the daughter without the assistance of a lawyer. The new will favoured the daughter over her brothers. One of the brothers challenged proof of the will in solemn form, claiming suspicious circumstances surrounding the preparation and execution of the will and lack of testamentary capacity.

The Nova Scotia Supreme Court held that the testator lacked testamentary capacity to execute the will in August 2000.

Wills - Topic 541

Testamentary capacity - Evidence and proof - Doctrine of suspicious circumstances - The 89 year old testator died in 2005 - He suffered a stroke in 1996 and executed a valid will two months later, basically evenly dividing his estate between his daughter and sons - The daughter was a live-in caregiver from 1996 to his death in 2005 - In 2000, the testator executed a new will, drafted by the daughter without the assistance of a lawyer, purportedly at the testator's request - The new will left the testator's house (only major asset) to the daughter - The daughter had added a second storey to the house (mortgage paid by testator) to accommodate her and her daughter - One of the brothers challenged proof of the will in solemn form, claiming suspicious circumstances surrounding the preparation and execution of the will and a lack of testamentary capacity based on the testator's declining physical and mental condition since the stroke - The Nova Scotia Supreme Court held that "there were significant suspicious circumstances surrounding the preparation and execution of this second will ... Although I accept that [the testator] executed this document, [his daughter] has not discharged her legal burden and demonstrated to me on a balance of probabilities that she drafted the will with his full knowledge and approval or that he was aware of its contents. The evidence of his lack of capacity simply overwhelmed her testimony" - The presumption of due execution did not apply - Accordingly, the 1996 will was admitted to probate in common form.

Wills - Topic 1504

Preparation and execution - General - Requirement of knowledge of contents - [See Wills - Topic 541 ].

Wills - Topic 1884

Preparation and execution - Evidence and proof - Presumption of due execution - [See Wills - Topic 541 ].

Cases Noticed:

Willis Estate, Re (2009), 280 N.S.R.(2d) 87; 891 A.P.R. 87; 2009 CarswellNS 426; 2009 NSSC 231, refd to. [para. 14].

Pollard Estate v. Falconer et al., [2008] B.C.T.C. Uned. 261; 2008 CarswellBC 820; 2008 BCSC 516, refd to. [para. 15].

MacKenzie v. MacKenzie Estate (1998), 169 N.S.R.(2d) 224; 508 A.P.R. 224; 162 D.L.R.(4th) 674 (C.A.), refd to. [para. 15].

Marsh Estate, Re (1991), 104 N.S.R.(2d) 266; 283 A.P.R. 266; 41 E.T.R. 225 (C.A.), refd to. [para. 15].

Hay Estate, Re (1995), 183 N.R. 1; 82 O.A.C. 161; 125 D.L.R.(4th) 431; 7 E.T.R.(2d) 209 (S.C.C.), refd to. [para. 73].

Vout v. Hay - see Hay Estate, Re.

Coleman v. Coleman Estate (2008), 272 N.S.R.(2d) 347; 69 A.P.R. 347; 2008 NSSC 396, refd to. [para. 15].

Muttart Estate et al. v. Jones (1995), 137 N.S.R.(2d) 116; 391 A.P.R. 116 (S.C.), refd to. [para. 15].

Goodman Estate v. Geffen, [1991] 2 S.C.R. 353; [1991] 5 W.W.R. 389; 127 N.R. 241; 125 A.R. 81; 14 W.A.C. 81; 80 Alta. L.R.(2d) 293, refd to. [para. 15].

Butler et al. v. Bird et al. (2002), 206 N.S.R.(2d) 364; 645 A.P.R. 364; 2002 NSSC 189, refd to. [para. 15].

Morash Estate, Re (2002), 209 N.S.R.(2d) 288; 656 A.P.R. 288; 2002 NSSC 244, refd to. [para. 15].

Legg v. Nicholson (2002), 208 N.S.R.(2d) 142; 652 A.P.R. 142; 2002 NSSC 217, refd to. [para. 15].

Thorsen Estate v. Thorsen (2002), 201 N.S.R.(2d) 320; 629 A.P.R. 320; 2002 CarswellNS 43; 2002 NSSC 23, refd to. [para. 15].

Authors and Works Noticed:

Feeney, Thomas G., The Canadian Law of Wills (4th Ed. 2000), paras. 2.6, 2.7, 2.11 [para. 13].

Counsel:

Allen C. Fownes and Lisa Avramenko, for the applicant;

John T. Shanks and Tanya Butler, for the respondent.

This matter was heard on August 31 and September 1 to 4, 2009, before Robertson, J., of the Nova Scotia Supreme Court, who delivered the following judgment on March 4, 2010.

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1 practice notes
  • Wamboldt v. Wamboldt Estate, (2010) 291 N.S.R.(2d) 323 (SC)
    • Canada
    • Nova Scotia Supreme Court of Nova Scotia (Canada)
    • 11 Junio 2010
    ...the preparation and execution of the will and lack of testamentary capacity. The Nova Scotia Supreme Court, in a judgment reported 289 N.S.R.(2d) 59; 916 A.P.R. 59, held that the testator lacked testamentary capacity to execute the will in August 2000. Now at issue was The Nova Scotia Supre......
1 cases
  • Wamboldt v. Wamboldt Estate, (2010) 291 N.S.R.(2d) 323 (SC)
    • Canada
    • Nova Scotia Supreme Court of Nova Scotia (Canada)
    • 11 Junio 2010
    ...the preparation and execution of the will and lack of testamentary capacity. The Nova Scotia Supreme Court, in a judgment reported 289 N.S.R.(2d) 59; 916 A.P.R. 59, held that the testator lacked testamentary capacity to execute the will in August 2000. Now at issue was The Nova Scotia Supre......

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