Wittenberg Estate, Re, (2014) 349 N.S.R.(2d) 323 (ProbCt)

Judge:McDougall, J.
Court:Nova Scotia Probate Court
Case Date:August 20, 2014
Jurisdiction:Nova Scotia
Citations:(2014), 349 N.S.R.(2d) 323 (ProbCt);2014 NSSC 301
 
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Wittenberg Estate, Re (2014), 349 N.S.R.(2d) 323 (ProbCt);

    1101 A.P.R. 323

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Temp. Cite: [2014] N.S.R.(2d) TBEd. AU.034

Richard Wittenberg (applicant) v. Estate of Gerda Theodora Wittenberg (respondent)

(Ken. No. 396940; 2014 NSSC 301)

Indexed As: Wittenberg Estate, Re

Nova Scotia Probate Court

McDougall, J.

August 20, 2014.

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 and granddaughter. 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, in a decision reported at 337 N.S.R.(2d) 24; 1067 A.P.R. 24, dismissed the motion.

The Nova Scotia Probate Court denied the son's application to have the Will set aside for lack of testamentary capacity and undue influence. The probate of the Will could now proceed.

Wills - Topic 531

Testamentary capacity - Evidence and proof - General - The testatrix's son applied to have his mother's Will proved in solemn form - His challenge was based on, inter alia, concerns regarding the testatrix's testamentary capacity - The Nova Scotia Probate Court held that the Will's propounders had shown, through various witnesses, that the testatrix was quite capable of making decisions on her own - The witnesses included a psychiatrist (Garvey) retained by the son to do an assessment of the testatrix - He was satisfied as to her mental competence, as was the lawyer who prepared the Will - The court found that as the testatrix advanced in age she began showing the normal signs of aging - These signs were more of a physical nature than of cognitive impairments or mental deficits - The court accepted Garvey's assessment of the testatrix's mental capacity and was not persuaded that her ability to give instructions to the lawyer was in any way diminished by a fall that occurred between Garvey's assessment and the making of the Will - See paragraphs 70 to 81.

Wills - Topic 536

Testamentary capacity - Evidence and proof - Presumption of testamentary capacity - [See Wills - Topic 541 ].

Wills - Topic 541

Testamentary capacity - Evidence and proof - Doctrine of suspicious circumstances - The testatrix's son applied to have his mother's Will proved in solemn form - His challenge was based on, inter alia, concerns regarding the testatrix's testamentary capacity - The Nova Scotia Probate Court stated that the son had only an evidentiary burden to point to some evidence of suspicious circumstances - If established, the presumption that the testatrix knew and approved of the Will's contents and had the necessary testamentary capacity was spent - It then fell on the Will's propounders to meet the legal burden of proving knowledge and approval and testamentary capacity - The court was satisfied that the son had met the evidentiary burden to show that suspicious circumstances were present - The circumstances included the testatrix's decision to remove her son from inheriting anything under her Will as well as circumstances that brought into question her mental capacity at the time she gave instructions for her Will and when she subsequently executed it - Also, her decision to purchase a residential property and then immediately put it back on the market without taking occupancy could raise a suspicion - See paragraphs 60 to 69.

Wills - Topic 1714

Preparation and execution - Undue influence - Evidence and proof - The testatrix's son applied to have his mother's Will proved in solemn form - His challenge was based on, inter alia, undue influence by the testatrix's daughter and granddaughter (Linda and Melanie) - The Nova Scotia Probate Court dismissed the application - If Linda and Melanie had wanted to conspire to force their mother/grandmother into signing a Will that she did not wish to sign, they would not have taken her first to Chase, a lawyer that knew her and had done work for her in the past - Furthermore, there was no evidence that either Linda or Melanie did anything more than transport the testatrix to Chase's office, then to Ernst's office (the lawyer who prepared the Will) - It was uncertain if either of them even went into the office, but they were certainly not present when Ernst met privately with the testatrix to discuss her wishes and obtain instructions for a new Will, Power of Attorney and Medical Authorization - Similarly, on the day the testatrix executed the Will and other documents, Ernst first met with her alone to review and explain their contents before calling her assistant in to act as the second witness to the testatrix's signature - What little evidence there was fell far short of what would be required to amount to coercion - The attempt to link Linda and Melanie to unexplained withdrawals and cheques written on the testatrix's bank account post of May 2007 was not evidence of undue influence - See paragraphs 82 to 88.

Cases Noticed:

Willis Estate, Re (2009), 280 N.S.R.(2d) 87; 891 A.P.R. 87; 2009 NSSC 231, refd to. [para. 60].

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. 62].

Coleman v. Coleman Estate (2008), 272 N.S.R.(2d) 347; 69 A.P.R. 347; 2008 NSSC 396, refd to. [para. 83].

Counsel:

Bernie Conway, Ll.B. and Jon Cuming, Ll.B. for the applicant;

Robert Stewart, Q.C., for the respondent.

This case was heard in Kentville, N.S., on July 22-24 and 31, 2013, and January 14 and 15, 2014, with final written submissions received on February 24, April 7 and 17, 2014, by McDougall, J., of the Nova Scotia Probate Court, who delivered the following decision on August 20, 2014.

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