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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13 practice notes
  • Devlin Estate (Re), 2021 NSSC 151
    • Canada
    • Supreme Court of Nova Scotia (Canada)
    • 7 de maio de 2021
    ...of execution and was reviewed by the testator, there is a rebuttable presumption of testamentary capacity (Willis Estate (Re), 2009 NSSC 231, 51 ETR (3d) 304; Vout v. Hay, 1995 CanLII 105 (SCC), [1995] 2 SCR 876, 7 ETR (2d) 209). [23]        Should the same rebuttable presumption apply in t......
  • Melendy v. Drodge, 2016 NLTD(G) 140
    • Canada
    • Newfoundland and Labrador Supreme Court of Newfoundland and Labrador (Canada)
    • 27 de abril de 2011
    ...executed" to diminish any suspicion raised and to conclude that the Will had been proven. [317] Finally I note Willis Estate, Re , 2009 NSSC 231, at paragraph 11 where, citing Macdonell, Sheard and Hall on Probate Practice , 4th Ed., the court acknowledged that while "circumstance......
  • Villeneuve v. MacPherson Estate, 2019 NSSC 88
    • Canada
    • Nova Scotia Supreme Court of Nova Scotia (Canada)
    • 15 de março de 2019
    ...which were set out by the Supreme Court of Canada in Vout v. Hay, [1995] 2 S.C.R. 876, and applied by this Court in Re Willis Estate, 2009 NSSC 231, 2009 Carswell NS 426. First, the formalities of execution required pursuant to the Wills Act, R.S.N.S. 1989, c. 505, must be satisfied and the......
  • Devlin Estate (Re), 2020 NSSC 77
    • Canada
    • Nova Scotia Supreme Court of Nova Scotia (Canada)
    • 27 de fevereiro de 2020
    ...determined by trial: Ramsay Estate, 2004 NSSC 140 (Wright, J.) and Fawson Estate, 2012 NSSC 55 (Hood, J.). [50]         Willis Estate, 2009 NSSC 231 (Murphy, J.) is an example of a hybrid. Direct evidence was introduced by affidavit of some witnesses and testimony of [51]         Before the......
  • Request a trial to view additional results
13 cases
  • Devlin Estate (Re), 2021 NSSC 151
    • Canada
    • Supreme Court of Nova Scotia (Canada)
    • 7 de maio de 2021
    ...of execution and was reviewed by the testator, there is a rebuttable presumption of testamentary capacity (Willis Estate (Re), 2009 NSSC 231, 51 ETR (3d) 304; Vout v. Hay, 1995 CanLII 105 (SCC), [1995] 2 SCR 876, 7 ETR (2d) 209). [23]        Should the same rebuttable presumption apply in t......
  • Fawson Estate, Re, (2012) 313 N.S.R.(2d) 150 (SC)
    • Canada
    • Nova Scotia Supreme Court of Nova Scotia (Canada)
    • 6 de fevereiro de 2012
    ...196]. Vout v. Hay - see Hay Estate, Re. Keddy Estate, Re, 2002 CarswellNS 451 (Prob. Ct.), refd to. [para. 199]. 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, ref......
  • Villeneuve v. MacPherson Estate, 2019 NSSC 88
    • Canada
    • Nova Scotia Supreme Court of Nova Scotia (Canada)
    • 15 de março de 2019
    ...which were set out by the Supreme Court of Canada in Vout v. Hay, [1995] 2 S.C.R. 876, and applied by this Court in Re Willis Estate, 2009 NSSC 231, 2009 Carswell NS 426. First, the formalities of execution required pursuant to the Wills Act, R.S.N.S. 1989, c. 505, must be satisfied and the......
  • Devlin Estate (Re), 2020 NSSC 77
    • Canada
    • Nova Scotia Supreme Court of Nova Scotia (Canada)
    • 27 de fevereiro de 2020
    ...determined by trial: Ramsay Estate, 2004 NSSC 140 (Wright, J.) and Fawson Estate, 2012 NSSC 55 (Hood, J.). [50]         Willis Estate, 2009 NSSC 231 (Murphy, J.) is an example of a hybrid. Direct evidence was introduced by affidavit of some witnesses and testimony of [51]         Before the......
  • Request a trial to view additional results