Fennell v. Crookshank Estate, 2010 NSSC 442

SUPREME COURT OF NOVA SCOTIA Citation: Fennell v. Crookshank Estate, 2010 NSSC 442 Date: 20101201 Docket: Hfx. No. 325839 Registry: Halifax Between: Paul Fennell, Martha Louise Jodrey Applicants v. Estate of Irene Crookshank Respondent Judge: The Honourable Justice Arthur J. LeBlanc. Heard: September 21, 30, 2010, in Halifax, Nova Scotia Oral Decision: November 5, 2010 Written Decision: December 1, 2010 Counsel: T. Peter Sodero, for the applicants By the Court : [ 1 ] This is an application under the Probate Act , S.N.S. 2000, c. 31, for proof in solemn form of a will of Irene Crookshank, dated June 26, 2002.

The application is made pursuant to s. 69(1) of the Probate Court Practice, Procedure and Forms Regulations , N.S. Reg. 119/2001, which provides that “[i]f an original will is lost or destroyed, the validity and content of the will shall be proved in accordance with

Section 31 of the Act upon an application for proof in solemn form, unless the court otherwise orders.”

Background [ 2 ] The testator, Irene Crookshank died on September 23, 2007. She had executed a will dated January 15, 2002, for which letters of probate were granted by the Registrar on October 3, 2007. It later came to light that Mrs. Crookshank had executed a subsequent will, dated June 26, 2002. The original copy of this will could not be found. [ 3 ] Upon notice being given to all of the beneficiaries under both wills, the court heard the application for proof in solemn form of the will of June 26, 2002. [ 4 ] Martha Louise Jodrey was a caretaker for the late Mrs. Crookshank, and was attorney under Mrs.

Crookshank’s power of attorney. She testified that she first heard of the June will approximately one year before the hearing. She had not been provided with the original. Attempts were made to locate the original. So far as she was concerned, the original will was never given to her or to Mrs. Crookshank or to the executor. In fact, she said, Mrs. Crookshank never expressed any interest in revoking, amending or destroying any will that she had executed. Ms. Jodrey said she was not even aware of the existence of the second will until a copy was shown to her.

She said she never took possession of the June 2002 will although she had possession of the original January 2002 will, which was kept in her safety deposit box. She stated that Mrs. Crookshank had a sound and disposing mind in all of 2002. [ 5 ] Robert Power testified that he and his wife, Diane Power, were the witnesses to the will of June 26, 2002. They both worked at the Melville Lodge Nursing Home. They attended at the office of a lawyer, Terry Bartlett-Visser, to complete the affidavits attached to the original will. Although he had no specific recollection, he thought that Ms.

Jodrey had picked up the will from his office. He was certain that he had not given the will to the other co-executor, and that he would not have given it to Mrs. Crookshank, because it would not be secure to give it to her at that location. Mr. Power stated that he had not been instructed by Mrs. Crookshank to revoke, modify or vary the Will of June 26, 2002. [ 6 ] Terry Bartlett-Visser is a lawyer and member of the Nova Scotia Barristers Society. She identified the June 26, 2002, will. She stated that she had been asked to draft the will, but did not witness its execution.

She noted that the affidavit of execution, dated June 27, 2002, confirmed that Mr. and Mrs. Powers had witnessed the will on June 26, 2002. She completed the affidavits of the witnesses and, although she did not have a recollection of seeing the original will as executed, she believed that it would have been necessary for her to have seen it in order to complete the affidavits. She said she would have given the original will to Mr. and Mrs. Power. She said the will would not have been given to Mrs. Crookshank and she assumed that Ms. Jodrey had possession of the original will. Ms.

Bartlett-Visser said she was not contacted by Mrs. Crookshank to alter, modify or revoke the will of June 26, 2002, after its execution. [ 7 ] Robert Power testified that he and his wife, Diane Power, were the witnesses to the will of June 26, 2002. They both worked at the Melville Lodge Nursing Home. They attended at Ms. Bartlett-Visser’s office to complete the affidavits attached to the original will. Although he had no specific recollection, he thought that Ms. Jodrey had picked up the will from his office.

He was certain that he had not given the will to the other co-executor, and that he would not have given it to Mrs. Crookshank, because it would not be secure to give it to her at that location. Mr. Power stated that he had not been instructed by Mrs. Crookshank to revoke, modify or vary the Will of June 26, 2002. Issue [ 8 ] The issue is whether the will of June 26, 2002, should be admitted to probate? The law

[ 9 ] When a will is destroyed or lost it must be proven solemn form before probate can be granted. If possession of a will can be last traced to the testator, but the will cannot be found upon her death, then there is a rebuttable presumption that the will was destroyed or revoked. In Brimicombe v. Brimicombe Estate , 2000 NSCA 67 , 2000 CarswellNS 146 (C.A.) , at para. 4 , Flinn, J.

A. cited Feeney’s Canadian Law of Wills , 3d edn., vol. 1, at pp. 134-135, where the author wrote: The same presumption, that of destruction animo revocandi , that arises when a destroyed or mutilated will is found among the testator's papers on his death, arises also when it is shown that the testator's will was last traced to his possession but cannot be found on his death. The presumption is well recognized in Canadian case law, but the fullest inquiries for the lost will must be shown to have been made for a court to apply the presumption in the first place.

The presumption is often rebutted either by the circumstances tending to show a contrary conclusion or by declarations made by the testator showing that he regarded the lost will as valid and subsisting. However, strong evidence is usually needed to rebut the presumption.

When the presumption is rebutted, probate may be granted of the contents of the lost will after proof of due execution, on such secondary evidence as a copy or a draft or solicitor's notes or any other written evidence, and indeed, if it is significantly clear, even oral testimony may be probated. ... [ 10 ] The evidence, including the affidavit evidence filed in support of the application, clearly and precisely indicates that the original affidavit was never in the possession of Mrs. Crookshank, because her living quarters were not a suitable place to store valuable papers.

Since the will cannot be traced to the testator’s possession, it is my view that the rebuttable resumption of revocation does not apply in this instance. [ 11 ] In order to have a will proven in the solemn form, the court must be satisfied of three requirements, which were set out by the Supreme Court of Canada in Vout v. Hay , 1995 CanLII 105 (SCC) , [1995] 2 S.C.R. 876 , and applied by this Court in Re Willis Estate , 2009 NSSC 231 , 2009 CarswellNS 426 .

First, the formalities of execution required pursuant to the Wills Act , R.S.N.S. 1989, c. 505, must be satisfied and the testator must have known and approved the contents of the will. The onus of proving these requirements rest with the applicant. I am satisfied that in this instance, all of the requirements of

section 6 of the Wills Act are satisfied. The will is in writing and it is signed by the testator and by two witnesses (in the testator’s presence), and the witnesses have provided affidavits. Once it is shown that the will was duly executed with the required formality, a rebuttable presumption arises that the testator knew and approved of the contents of the will. This presumption was not rebutted.

As such, the first requirement for proof in solemn form is met. [ 12 ] The second requirement is that the applicant must show that the testator possessed the required capacity to create and understand the will when it was executed. However, proof of proper execution also raises a rebuttable presumption that the testator had the required capacity when the will was executed. This presumption has not been rebutted.

Therefore I find that the second requirement for proof in solemn form is also met. [ 13 ] Finally, if it is shown that undue influence was applied to the testator, the will will not be admitted to probate. The burden of proof rests on the party attacking the will to show that the testator’s assent was obtained by undue influence, such that the will is a product of coercion rather than of the testator’s wishes. There was no evidence advanced to show that any undue influence was exercised upon the testator in this matter.

Therefore, I find that there are no suspicious circumstances in the execution of the June 2002 will. All of the three requirements required to prove the will in solemn form have been met. [ 14 ] Accordingly, I direct that a copy of the will of June 26, 2002, be utilized to prove its contents and that the same be admitted to probate. I also order the grant of probate to the will of January 2002 be revoked, and in its place the will of June 26, 2002, be made the Last Will and Testament of the late Irene Crookshank. [ 15 ] I allow costs on the solicitor-client scale, to be taxed.

J.