Wittenberg Estate, Re, (2013) 337 N.S.R.(2d) 24 (ProbCt)

• Judge: McDougall, J.
• Court: Probate Court of Nova Scotia (Canada)
• Case Date: September 25, 2013
• Jurisdiction: Nova Scotia
• Citations: (2013), 337 N.S.R.(2d) 24 (ProbCt);2013 NSSC 324

Wittenberg Estate, Re (2013), 337 N.S.R.(2d) 24 (ProbCt);

    1067 A.P.R. 24

MLB headnote and full text

Temp. Cite: [2013] N.S.R.(2d) TBEd. NO.019

Richard Wittenberg and Estate of Gerda Wittenberg

(Ken. No. 396940; Probate No. 12641; 2013 NSSC 324)

Indexed As: Wittenberg Estate, Re

Nova Scotia Probate Court

McDougall, J.

September 25, 2013.

Summary:

The son of the testatrix applied to have his mother's Will proved in solemn form. The basis for his challenge pertained to the Will's execution, as well as concerns regarding the testatrix's testamentary capacity coupled with a suggestion of undue influence by the testatrix's daughter. The Will's proponents made a motion for nonsuit after they had called their evidence, after the son had testified (only witness for the opposing side) and after the proponents decided not to call their rebuttal witness.

The Nova Scotia Probate Court dismissed the motion.

Practice - Topic 5390.3

Dismissal of action - Application or motion for dismissal - Nonsuit - At time other than after close of plaintiff's case - The testatrix's son applied to have his mother's Will proved in solemn form - The basis for his challenge pertained to the Will's execution, as well as concerns regarding the testatrix's testamentary capacity coupled with a suggestion of undue influence by the testatrix's daughter - The Will's proponents made a motion for nonsuit after they had called their evidence, the son had testified (only witness for the opposing side) and the proponents had decided not to call their rebuttal witness - The Nova Scotia Probate Court stated that "Typically, motions for non-suit are brought by the defending party at the close of the plaintiff's case. In fact, the Civil Procedure Rules allow only for this. However, the principles that guide the law of non-suit are equally applicable to instances where a plaintiff or applicant alleges that a defendant or respondent has not met an evidentiary burden that rests on that party. There is no reason for precluding the proponents of the Will from requesting that I assess the sufficiency of the evidence to establish the respondent's claims prior to making final findings of fact." - See paragraph 13.

Practice - Topic 5390.3

Dismissal of action - Application or motion for dismissal - Nonsuit - At time other than after close of plaintiff's case - The testatrix's son applied to have his mother's Will proved in solemn form - The basis for his challenge pertained to the Will's execution, as well as concerns regarding the testatrix's testamentary capacity coupled with a suggestion of undue influence by the testatrix's daughter - The Will's proponents made a motion for nonsuit after they had called their evidence, the son had testified (only witness for the opposing side) and the proponents had decided not to call their rebuttal witness - The Nova Scotia Probate Court stated that "Without commenting on the relative strength of the proponents' versus the respondent's case, I do not feel it is appropriate to grant the motion for non-suit as it pertains to either testamentary capacity or undue influence. The respondent can point to some evidence of 'suspicious circumstances' and, short of assessing and assigning weight to the evidence related to the assertion of undue influence, the Court cannot rule on this aspect of the motion either. That determination can only be made once all the evidence has been presented or tendered, as the case may be, and only then can the Court assess that evidence and give it the weight that it deserves. Should the Will's proponents wish to offer rebuttal evidence, I will permit counsel to call further witnesses."

Practice - Topic 5390.3

Dismissal of action - Application or motion for dismissal - Nonsuit - At time other than after close of plaintiff's case - The testatrix's son applied to have his mother's Will proved in solemn form - The basis for his challenge pertained to the Will's execution, as well as concerns regarding the testatrix's testamentary capacity coupled with a suggestion of undue influence by the testatrix's daughter - The Will's proponents made a motion for nonsuit after they had called their evidence, the son had testified (only witness for the opposing side) and the proponents had decided not to call their rebuttal witness - The Nova Scotia Probate Court noted that the Rules of Civil Procedure did not provide for nonsuit motions apart from those brought by the defending party at the close of the plaintiff's case - The court set out procedures to be followed where a defendant or respondent brought a nonsuit motion - The court stated that if there was evidence on the record, it should factor into the consideration of the sufficiency of evidence on any given issue - Therefore, in assessing the sufficiency of the respondent's evidence in this case, the court should look at the entire record and not just the respondent's own testimony - See paragraphs 1 to 36.

Cases Noticed:

Vout 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. 16].

Johansson v. General Motors of Canada Ltd. (2012), 324 N.S.R.(2d) 252; 1029 A.P.R. 252; 2012 NSCA 120, refd to. [para. 20].

Poulain v. Iannetti (2013), 326 N.S.R.(2d) 141; 1033 A.P.R. 141; 2013 NSCA 10, refd to. [para. 21].

Shane v. 3104854 Nova Scotia Ltd. (2013), 332 N.S.R.(2d) 187; 1052 A.P.R. 187; 2013 NSCA 84, refd to. [para. 21].

Adams Estate, Re, [1997] Nfld. & P.E.I.R. Uned. 22; 1997 CarswellNfld 109 (T.D.), refd to. [para. 24].

Grant et al. v. Torstar Corp. et al., [2009] 3 S.C.R. 640; 397 N.R. 1; 258 O.A.C. 285; 2009 SCC 61, refd to. [para. 29].

Cowie (J.W.) Engineering Ltd. v. Allen, Smith, Keeping (1982), 52 N.S.R.(2d) 321; 106 A.P.R. 321 (C.A.), refd to. [para. 31].

Authors and Works Noticed:

Cross on Evidence (4th Ed. 1974), p. 66 [para. 31].

Halsbury's Laws of Canada, generally [para. 28].

Sopinka, John, and Lederman, Sidney N., The Law of Evidence in Civil Cases (1974), p. 523 [para. 35].

Counsel:

Bernie Conway, Ll.B. and Jon Cuming, Ll.B.;

Robert Stewart, Q.C.

This motion was heard on July 22, 23, 24 and 31, 2013, in Kentville, N.S., by McDougall, J., of the Nova Scotia Probate Court, who delivered an oral decision on September 25, 2013, and the following written reasons on October 22, 2013.