Willis Estate, Re, 2009 NSSC 231

JudgeMurphy, J.
CourtSupreme Court of Nova Scotia (Canada)
Case DateMay 01, 2009
JurisdictionNova Scotia
Citations2009 NSSC 231;(2009), 280 N.S.R.(2d) 87 (SC)

Willis Estate, Re (2009), 280 N.S.R.(2d) 87 (SC);

    891 A.P.R. 87

MLB headnote and full text

Temp. Cite: [2009] N.S.R.(2d) TBEd. AU.013

In the Estate of James Willis Application by Allison Willis for Proof in Solemn Form

(Hfx No. 288704; 2009 NSSC 231)

Indexed As: Willis Estate, Re

Nova Scotia Supreme Court

Murphy, J.

May 1, 2009.

Summary:

Willis was illiterate and signed his name with an X. Willis' first will, dated February 14, 2003, was prepared by lawyer A, who had acted for Willis for approximately 10 years. The principal beneficiaries were Willis' cousin and Willis' son, Roderice. After Willis' wife died in April 2003, his daughter, Vivian, and her daughter, LaTania, cared for him and were increasingly involved in his affairs. In December 2003, Willis executed a second will, prepared by lawyer B. The principal beneficiaries were Willis' son, Ivan, and his granddaughter, LaTania. Willis died in March 2006 at age 94. Willis' eldest son, Allison, sought proof of the second will in solemn form, asserting that (i) it was executed by someone impersonating Willis or (ii), if Willis had executed the will, he did so under undue influence.

The Nova Scotia Supreme Court held that the second will was invalid.

Wills - Topic 1588

Preparation and execution - Formal validity - Evidence and proof - Willis was illiterate and signed his name with an X - Willis' first will, dated February 14, 2003, was prepared by lawyer A, who had acted for Willis for approximately 10 years - The principal beneficiaries were Willis' cousin and Willis' son, Roderice - After Willis' wife died in April 2003, his daughter, Vivian, and her daughter, LaTania, cared for him and were increasingly involved in his affairs - In December 2003, Willis executed a second will, prepared by lawyer B - The principal beneficiaries were Willis' son, Ivan, and his granddaughter, LaTania - Willis died in March 2006 at age 94 - When lawyer A became aware that there was a second will, he expressed concerns to the Registrar of Probate - Willis' eldest son, Allison, sought proof of the second will in solemn form, asserting that (i) it was executed by someone impersonating Willis or (ii), if Willis had executed the will, he did so under undue influence - Lawyer A provided evidence that Willis had returned to his office on at least two occasions after December 2003 and had affirmed the contents of the first will without mentioning the existence of a second will - The Nova Scotia Supreme Court held that the second will was invalid - Suspicious circumstances surrounding the preparation and execution of the second will rebutted the initial presumption of its validity - See paragraphs 19 to 24 - Proper execution of the second will was not established - The limited inquiries that lawyer B made of the person who executed the second will, her incomplete memory of the events and the contrast between her description and lawyer A's testimony led the court to doubt that Willis was the person who executed the second will - See paragraphs 25 to 39 - If the court had concluded that Willis had executed the second will, it would have been declared invalid as having been executed under undue influence in order to have a beneficiary provide assistance, including personal care and financial management during his remaining lifetime - See paragraphs 40 to 42.

Wills - Topic 1704

Preparation and execution - Undue influence - What constitutes - General - [See Wills - Topic 1588 ].

Wills - Topic 1714

Preparation and execution - Undue influence - Evidence and proof - [See Wills - Topic 1588 ].

Wills - Topic 1884

Preparation and execution - Evidence and proof - Presumption of due execution - [See Wills - Topic 1588 ].

Cases Noticed:

Hay Estate, Re, [1995] 2 S.C.R. 876; 183 N.R. 1; 82 O.A.C. 161, refd to. [para. 8].

Vout v. Hay - see Hay Estate, Re.

Ramsay Estate, Re, [2004] N.S.R.(2d) Uned. 81; 2004 NSSC 140, refd to. [para. 8].

Coleman v. Coleman Estate (2008), 272 N.S.R.(2d) 347; 69 A.P.R. 347; 2008 NSSC 396, refd to. [para. 8].

Coughlan Estate, Re, [2003] Nfld. & P.E.I.R. Uned. 61; 2003 PESCTD 75, refd to. [para. 11].

Authors and Works Noticed:

Macdonell, Sheard and Hull, Probate Practice (4th Ed. 1996), p. 42 [para. 11].

Counsel:

Myra L. Jerome, for the applicant;

Philip Whitehead, for LaTania Wilson and Vivian Willis.

This application was heard at Halifax, Nova Scotia, on October 6-8, 2008, by Murphy, J., of the Nova Scotia Supreme Court, who rendered an oral decision on May 1, 2009, and delivered the following written decision on July 28, 2009.

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11 practice notes
  • Wamboldt v. Wamboldt Estate, (2010) 289 N.S.R.(2d) 59 (SC)
    • Canada
    • Nova Scotia Supreme Court of Nova Scotia (Canada)
    • March 4, 2010
    ...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; 200......
  • Baird Estate, Re, 2014 NSSC 266
    • Canada
    • Nova Scotia Supreme Court of Nova Scotia (Canada)
    • July 11, 2014
    ...v. Hay - see Hay Estate, Re. Hay Estate, Re, [1995] 2 S.C.R. 876; 183 N.R. 1; 82 O.A.C. 161, refd to. [para. 10]. Willis Estate, Re (2009), 280 N.S.R.(2d) 87; 891 A.P.R. 87; 2009 NSSC 231, refd to. [para. Nieuwland v. Yorke Estate (2011), 298 N.S.R.(2d) 203; 945 A.P.R. 203; 2011 NSSC 19, re......
  • Wright v. Wright, [2013] N.S.R.(2d) Uned. 222
    • Canada
    • Supreme Court of Nova Scotia (Canada)
    • September 20, 2013
    ...in Vout v. Hay , [1995] 2 S.C.R. 876. That decision has been followed many times by this Court - see for instance Willis Estate (Re), 2009 NSSC 231; Nieuwland v. Yorke Estate , 2011 NSSC 19, and Fawson Estate (Re) , 2012 NSSC 55. [12] In Willis supra , Justice Murphy helpfully reviewed the ......
  • Nieuwland v. Yorke Estate, (2011) 298 N.S.R.(2d) 203 (SC)
    • Canada
    • Nova Scotia Supreme Court of Nova Scotia (Canada)
    • January 21, 2011
    ...- The court was satisfied that the 2006 will expressed the wishes of Elizabeth, not the testator. Cases Noticed: Willis Estate, Re (2009), 280 N.S.R.(2d) 87; 891 A.P.R. 87; 2009 NSSC 231, refd to. [para. Brownhill Estate, Re (1986), 72 N.S.R.(2d) 181; 173 A.P.R. 181 (Prob. Ct.), dist. [para......
  • Request a trial to view additional results
11 cases
  • Wamboldt v. Wamboldt Estate, (2010) 289 N.S.R.(2d) 59 (SC)
    • Canada
    • Nova Scotia Supreme Court of Nova Scotia (Canada)
    • March 4, 2010
    ...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; 200......
  • Baird Estate, Re, 2014 NSSC 266
    • Canada
    • Nova Scotia Supreme Court of Nova Scotia (Canada)
    • July 11, 2014
    ...v. Hay - see Hay Estate, Re. Hay Estate, Re, [1995] 2 S.C.R. 876; 183 N.R. 1; 82 O.A.C. 161, refd to. [para. 10]. Willis Estate, Re (2009), 280 N.S.R.(2d) 87; 891 A.P.R. 87; 2009 NSSC 231, refd to. [para. Nieuwland v. Yorke Estate (2011), 298 N.S.R.(2d) 203; 945 A.P.R. 203; 2011 NSSC 19, re......
  • Wright v. Wright, [2013] N.S.R.(2d) Uned. 222
    • Canada
    • Supreme Court of Nova Scotia (Canada)
    • September 20, 2013
    ...in Vout v. Hay , [1995] 2 S.C.R. 876. That decision has been followed many times by this Court - see for instance Willis Estate (Re), 2009 NSSC 231; Nieuwland v. Yorke Estate , 2011 NSSC 19, and Fawson Estate (Re) , 2012 NSSC 55. [12] In Willis supra , Justice Murphy helpfully reviewed the ......
  • Nieuwland v. Yorke Estate, (2011) 298 N.S.R.(2d) 203 (SC)
    • Canada
    • Nova Scotia Supreme Court of Nova Scotia (Canada)
    • January 21, 2011
    ...- The court was satisfied that the 2006 will expressed the wishes of Elizabeth, not the testator. Cases Noticed: Willis Estate, Re (2009), 280 N.S.R.(2d) 87; 891 A.P.R. 87; 2009 NSSC 231, refd to. [para. Brownhill Estate, Re (1986), 72 N.S.R.(2d) 181; 173 A.P.R. 181 (Prob. Ct.), dist. [para......
  • Request a trial to view additional results

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