Wheatley Estate, Re, (1984) 95 N.S.R.(2d) 66 (ProbCt)

• Court: Probate Court of Nova Scotia (Canada)
• Case Date: March 15, 1984
• Jurisdiction: Nova Scotia
• Citations: (1984), 95 N.S.R.(2d) 66 (ProbCt)

Wheatley Estate, Re (1984), 95 N.S.R.(2d) 66 (ProbCt);

    251 A.P.R. 66

MLB headnote and full text

In The Matter of the Estate of Timothy Robert Wheatley, deceased;

In The Matter of an Application to Probate a Holograph Will of a Serviceman

Indexed As: Wheatley Estate, Re

Nova Scotia Probate Court

Allen, Registrar of Probate

March 15, 1984.

Summary:

Wheatley, a member of the Canadian Armed Forces on active service in Germany, made a handwritten, signed and unwitnessed proposed holograph will. The issue was whether the will was valid under s. 8 of the Wills Act, as being made by "any soldier being in actual military service".

The Registrar of the Nova Scotia Probate Court refused probate of the proposed holograph will. The Registrar held that Wheatley was not in "actual military service" as defined in s. 8.

Wills - Topic 55

Testamentary instruments - Servicemen's wills - "Actual military service" defined - Wheatley, a member of the Canadian Armed Forces on active service in Germany, made a handwritten, signed and unwitnessed proposed holograph will - The issue was whether the will was valid under s. 8 of the Wills Act, as being made by "any soldier being in actual military service" - The Registrar of the Nova Scotia Probate Court refused probate of the proposed holograph will - The Registrar held that Wheatley was not in "actual military service" as defined in s. 8 - The Registrar stated that "active service" under s. 31(1) of the National Defence Act was not synonymous with "actual military service" under s. 8 - Wheatley was a member of the ground crew with duties of armament repair and disbursing armament to personnel during an alert - There was no alert and no "actual military service".

Words and Phrases

"Actual military service" - The Registrar of the Nova Scotia Probate Court defined the phrase "actual military service", as found in s. 8 of the Wills Act, R.S.N.S. 1967, c. 340.

Cases Noticed:

Drummond v. Parrish, 163 E.R. 812, refd to. [paras. 7, 15].

In the Estate of Rippon, [1943] P. 61, refd to. [para. 7].

Timond v. Cunliffe, [1915] 2 Ch. 240, refd to. [para. 7].

In the Estate of Coleman, [1958] 2 All E.R. 35, refd to. [para. 7].

In re Will of Anderson, 75 N.S.W.W.N. 334, refd to. [para. 8].

In re Wingham's Will, [1948] 2 All E.R. 908, refd to. [para. 8].

Re Gossage, [1921] P. 194, refd to. [para. 10].

In re Grey, [1922] P. 140, refd to. [para. 15].

In the Will of Oliver, John Graham (1949), 67 N.S.W.W.N. 23, refd to. [para. 16].

In re Radley's Estate, [1983] 3 All E.R., refd to. [para. 28].

Statutes Noticed:

National Defence Act, R.S.C. 1970, c. N-4, sect. 31(1) [para. 9].

Wills Act, R.S.N.S. 1967, c. 340, sect. 2 [para. 17]; sect. 8(1), sect. 8(2), sect. 14(b) [para. 2]; sect. 15(1) [para. 17].

Authors and Works Noticed:

American and English Encyclopedia of Law, vol. 30, p. 571 [para. 27].

Century Dictionary [para. 10].

Oxford English Dictionary [para. 10].

Counsel:

[none disclosed]