Foster v. Kenney Estate, 2022 NSSC 29

IN THE COURT OF PROBATE FOR Nova Scotia Citation: Foster v. Kenney Estate , 2022 NSSC 29 Date: 20220208 Probate Court File: 66080 Docket: Hfx No. 493427 Registry: Halifax Between: In the Estate of Muriel Frances Kenney Paul Foster and Sherry Foster (on behalf of the Estate of Muriel Frances Kenney) Applicants v. Juanita Foster Respondent Judge: The Honourable Justice D. Timothy Gabriel Heard: December 1, 2021, in Halifax, Nova Scotia Counsel: Lisanne Jacklin, for the Applicants Juanita Foster, self-represented, Respondent By the Court: [ 1 ] This is an Application for Proof in Solemn Form brought pursuant to

section 31 of the Probate Act , SNS 2000 c. 31 ("the Act "). The Applicants are Paul and Sherry Foster. They are the grandson and granddaughter-in-law (respectively) of the late Muriel Francis Kenney ("the Testatrix"). The latter died on November 6, 2018, at the age of 94 years. They seek to have a photocopy of the executed Will admitted to Probate in place of the (now lost) original. [ 2 ] Originally, there were two objecting parties, Juanita Foster and Sharon Berglund. Both were unrepresented. Only Ms. Foster remains. I will proceed to set forth the essential facts in

summary form. Background [ 3 ] Prior to her death, the Testatrix had executed a Last Will and Testament on May 30, 2005 (“the Will”). It is the subject of this Application. Although no medical evidence was called, it appears to be common ground between the parties that she developed Alzheimer's Disease in her later years. [ 4 ] Until May, 2010, Ms. Kenney lived independently in her own home, albeit with some assistance from the Applicants and Respondents from time to time. Then she moved into a nursing home (Ivany Place).

The bulk of her possessions, aside from those necessities that the Testatrix needed to bring with her, remained at her residence. [ 5 ] The Applicants allege that the original Will was not in her possession when she moved into the nursing home. They say that although the Testatrix had earlier provided them with a photocopy of the Will (since they were her named Executors) the original went missing at some point after she moved into the nursing home. They further say they had last seen it in a locked box in which the late Ms.

Kenney kept all of her important papers, and that the last known location of that box was in the Testatrix' bathroom, or under her bed. [ 6 ] Ms. Kenney had three children, Juanita Foster, Gary Foster, and Sharon Berglund. The male Applicant is the son of the Respondent Juanita Foster and, as previously noted, the grandson of the Testatrix. The female Applicant is his wife. [ 7 ] The Applicants claim that Ms. Foster, Ms.

Berglund, and many other people were "...in and out of the house who would have had access to that lockbox [after she moved into Ivany Place] ..." ( affidavit, Sherry Foster, October 18, 2019, at para. 13 ). [ 8 ] They go on to say: A few days before Nan was admitted to the nursing home, Juanita was visiting at the house and came out of the bathroom with a garbage bag stating she was taking blankets home to wash them. The blankets were in the linen closet where I last saw the lockbox which

contained the original Will. ( Affidavit, Sherry Foster, para. 16 ) [ 9 ] The Respondent, Juanita Foster's, relationship with the Applicant's son, (her grandson) James, appears to have been overall a good and supportive one. This has been the case since James was a small child. However, he has filed an Affidavit in support of his parents in this Application as well.

The Respondent (understandably) indicated that she had no wish to cross-examine him on the contents thereof. [ 10 ] Approximately one week before the hearing, Sharon Berglund contacted her sister Juanita Foster, and advised her that she was withdrawing her Notice of Objection. She said that she no longer wished to participate in these proceedings. Ms. Foster promptly notified the Court and the Applicants' counsel. [ 11 ] The matter proceeded with only one Respondent/objector, that being Juanita Foster. Evidence presented [ 12 ] The following documents were filed: 1.

Applicants' Notice of Application filed October 18, 2019; 2. Affidavit, Paul Foster, filed October 18, 2019; 3. Affidavit, Paul Foster, filed October 30, 2019; 4. Affidavit, Sherry Foster, dated October 18, 2019; 5. Notice of Application, amended November 21, 2019, filed November 27, 2019; 6. Affidavit, James Foster, filed January 31, 2020; 7. Notice of Objection to Application, Juanita Marie Foster, filed January 17, 2020; 8. Affidavit, Juanita Marie Foster, filed January 17, 2020; and 9.

Affidavit, Juanita Marie Foster, filed March 6, 2020. [ 13 ] I do not intend to repeat all of the contents of these materials, although I have considered them. The Notice of Objection filed by Sharon Berglund was not considered, as she had withdrawn it. Moreover, she did not attend the hearing or provide the Court with any sworn material. [ 14 ] Paul Foster, Sherry Foster, and Juanita Foster all testified. Essentially they were cross-examined on their affidavits. Former lawyer, Brian Newton, also testified, having provided a “can-say” statement beforehand.

The Respondent, when asked, indicated that she was prepared to proceed in this fashion, without a sworn affidavit from Mr. Newton in advance. (

i) Brian Newton’s evidence [ 15 ] Mr. Newton is a former member of the Nova Scotia Barristers’ Society. He graduated from Dalhousie Law School in 1975, was admitted to the Bar the following year, and attained his Queen's Counsel designation in 1992. He retired from the practice of law in 2017. [ 16 ] He testified that between the years 1977 and 1988, he concentrated exclusively on the practice of criminal law, as a member of the Nova Scotia Public Prosecution Service. In 1988 he entered private practice, and worked exclusively as a criminal defence counsel for a time.

In 1990, his practice broadened into a more general one, which included real estate, wills and estate work. As well, he continued to practice some criminal law. [ 17 ] Mr. Newton testified that in 2017, when he retired, the remaining members of his firm went their separate ways. His files were retained by lawyer Suzanne Robicheau, because he had remained as counsel to her firm for a short period of time after retirement. [ 18 ] Exhibits 1 and 2 were tendered. They consisted of the documents that had remained in Ms. Kenney's file when it was retrieved from storage preliminary to this Application.

Exhibit 1 consisted of a draft of the Last Will and Testament of the Testatrix ("the Will”), and a photocopy of an unsigned draft of a Power of Attorney for Ms. Kenney. Exhibit 2 was a photocopy of the signed Will, witnessed by both Mr. Newton and his (then) legal assistant, Vanessa A. Martin. [ 19 ] Exhibit 1 also contained two other documents when retrieved. The first was an account for Mr. Newton's services dated "May, 2005" (the Will itself was executed on May 30, 2005). The second consisted of some handwritten notes with the words "May 17 th " at the top. [ 20 ] Mr.

Newton confirmed that these “May 17” notes were in his handwriting, and that his handwriting was messier than usual. He inferred from this that he had written them down during an initial telephone conversation with Ms. Kenney. There is a reference at the bottom of the page which suggested to him that he may have had an outside appointment that day between 12:00 – 1:00 p.m. Because of that, and also the quality of his penmanship, Mr. Newton felt that he may have been in a hurry when he spoke with the Testatrix. [ 21 ] In any event, a transcription of these notes follows:

May 17th Age of majority – James and Dawn – 21 years of age. Juanita Foster – daughter – threatened Paul and I – Sherry + Paul – Specifically exclude them from the will 53 Cow Bay Road, Eastern Passage – 465 – 6294 Funeral arrangement buried in Church Cemetery Sherry + Paul to be Power of Attorney [ 22 ] Mr. Newton had no recollection of either Ms. Kenney or her file, but he did testify as to what his ordinary practice would have been at the time.

He confirmed that the file records (exhibit 1) contained none of the notes that he would invariably have taken when he and the Testatrix subsequently met in person. [ 23 ] Mr. Newton testified that when he met with a person (for whom he was to prepare a Will) for the first time, they would meet alone. He would want to make some observations with respect to her capacity to execute the instrument that he was being instructed to prepare. The Testatrix’s knowledge of whom the potential beneficiaries would be was of obvious interest to him.

If there was a spouse or child(ren) to whom property was not being left, he would want to know why. [ 24 ] Sometimes Mr. Newton would make specific mention in the Will as to why spouses or children (for whom he would ordinarily expect provision to be made) were being excluded. In this case, he obviously did not do so. He testified that it is likely that the notes that he would have prepared when he met personally with Ms. Kenney would have made note of the reason why the Testatrix had excluded all of her children.

He did not know what became of them, but acknowledged that it was not uncommon that file contents might be “thinned out” prior to being placed in long term (or archival) storage, to save some space. However, his practice was, invariably, to insure that they understood and approved the contents of the Will before signing, to give the original Will to his clients after execution, and to retain a photocopy of the signed original in the file. [ 25 ] The Will itself appoints Paul and Sherry Foster to be co-Executors, and to be the recipients of Ms.

Kenney's "residence and land located at 53 Cow Bay Road, Eastern Passage, B3G 1A2", as well as her "jewelry, personal effects, household goods, furniture and clothing". They, as well as her grandchildren James Foster, Pauline Carson, Dawn Carson, Kimberley Foster, and Laura Foster, are named as the Residuary Legatees. (ii) The evidence of the other witnesses [ 26 ] The Testatrix’ life appears to have been, at times, very challenging. [ 27 ] Her husband, Sgt. Wallace Gordon Foster (the Respondent’s father), died at the age of 30 years, on July 13, 1956, as the result of a car accident.

While the Armed Forces (his employer) did pay for his funeral as well as the family’s expenses to move from Ontario to the Testatrix’ home in Nova Scotia, the Testatrix "...did not get a military pension as [her deceased husband] was not on duty but on his way home from work" when the car accident occurred ( Respondent’s brief, para. 7 ). [ 28 ] Ms. Kenney was gifted a lot of land by her family, and it was upon this land that she built the residence at 53 Cow Bay Road, Eastern Passage, where she resided from 1956, until she relocated to Ivany Place in 2010. The proceeds of Sgt.

Wallace's personal life insurance policy, totaling $8,000.00, were used to construct the home. It was in this home that the Respondent and her siblings grew up. [ 29 ] The Respondent’s evidence was to the effect that the Testatrix became embittered following the death of her husband, and it affected her relationship with her children from roughly that time onwards.

This was exacerbated by a second marriage to a person who is alleged to have abused alcohol. ( Affidavit, Juanita Marie Foster, January 17, 2020, para 22, Respondent’s brief, para. 7 ). [ 30 ] This ill will has been pervasive, and appears to have impacted further generations. The Respondent's relationship with her own son, the male Applicant, is significantly strained.

The Applicants chose to have the documents which initiated this Application, including affidavits containing insinuations that the Respondent misappropriated the original Will, as well as (their son and the Respondent's grandson) James' affidavit, personally served upon the Respondent by James himself, rather than by a professional process server, as would ordinarily have been done ( Respondent’s Notice of Objection, para. 4 ).

Issues 1. Were the formalities of the Wills Act observed? 2. If yes, did the Testatrix have capacity to execute the Will, was undue influence brought to bear upon her, or have any otherissues been established so as to vitiate it? 3. Should the photocopy of the original Will be admitted to Probate? Discussion and Analysis 1. Compliance with Wills Act [31] This Application is pursuant to

section 31 of the Probate Act which reads: 31

(1) A court may hear a will proved in solemn form and determine the validity of the will where an application asking the court to doso is made by a person interested in the estate of the testator either before or after a grant is made with respect to the will but not after theexpiration of six months from the grant.

(2) Notwithstanding subsection (1), the court may, upon application, where it considers it just, hear a will proved in solemn form at anytime after the expiration of six months from the grant and before an order is issued pursuant to

Section 72 as to any portion of the estateremaining undistributed at the date of the application [32] The Applicants are the named Executors. They obviously have standing to bring this Application. At the outset, they mustestablish, on a balance of probabilities, that the formalities of the Wills Act, R.S.N.S. , c.505, s.1 were observed. [33] This latter Act prescribes thus: 6(1). No will is valid unless it is in writing and executed in manner hereinafter mentioned: (

a) it shall be signed at the end or foot thereof by the testator or by some other person in the testator's presence and by the testator'sdirection; (

b) such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and (

c) such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation is necessary.

(2) Notwithstanding subsection (1), a will is valid if it is wholly in the testator's own handwriting and it is signed by the testator. [34] I accepted the evidence of Brian Newton as to what his standard practice was, both with respect to the initial face-to-facemeeting with those of his clients for whom he was to draft a Last Will and Testament, as well as with respect to his practice uponexecution of the instrument itself, at the relevant time.

I am satisfied, in particular, that he would not have allowed the Will to beexecuted and witnessed if there had been any indication that the Testatrix either was unable to understand it, or did not approve of itscontents. [35] Quite understandably, Mr. Newton had no recollection of meeting with Ms. Kenney, or of her personally, after this expanse oftime. That said, he did identify his signature on the photocopied Will which was proffered by the Applicants, as well as that of hisassistant (at the time) Vanessa A.

Martin, and indicated that it would be quite common for her to act in concert with him and sign as thesecond witness to a Will that he prepared for a client. [36] On the basis of his testimony, I am satisfied that the Applicants have established, on a balance of probabilities, compliance withthe formalities specified in the Wills Act. 2. If yes, did the Testatrix have capacity to execute the Will, was undue influence brought to bear upon her, or have any otherissues been established so as to vitiate it? [37] Compliance with the Wills Act has been established.

A rebuttable presumption of capacity on the part of the Testatrix exists,and that she knew and approved the contents thereof. The onus was upon the Respondent to rebut this, and she did not. I will explain. [38] It is usual to cite Vout v. Hay, (SCC), [1995] 2 SCR 876, in this context: 26. Suspicious circumstances in any of the three categories to which I refer above will affect the burden of proof with respect toknowledge and approval. The burden with respect to testamentary capacity will be affected as well if the circumstances reflect on themental capacity of the testator to make a will.

Although the propounder of the will has the legal burden with respect to due execution,knowledge and approval, and testamentary capacity, the propounder is aided by a rebuttable presumption. Upon proof that the will wasduly executed with the requisite formalities, after having been read over to or by a testator who appeared to understand it, it willgenerally be presumed that the testator knew and approved of the contents and had the necessary testamentary capacity. 27.

Where suspicious circumstances are present, then the presumption is spent and the propounder of the will reassumes the legalburden of proving knowledge and approval. In addition, if the suspicious circumstances relate to mental capacity, the propounder of thewill reassumes the legal burden of establishing testamentary capacity. Both of these issues must be proved in accordance with the civilstandard. There is nothing mysterious about the role of suspicious circumstances in this respect. The presumption simply casts anevidentiary burden on those attacking the will.

This burden can be satisfied by adducing or pointing to some evidence which, if

accepted, would tend to negative knowledge and approval or testamentary capacity. In this event, the legal burden reverts to thepropounder. 28. It might have been simpler to apply the same principles to the issue of fraud and undue influence so as to cast the legal burden ontothe propounder in the presence of suspicious circumstances as to that issue. See Wright, supra, and Macdonell, Sheard and Hull onProbate Practice, supra, at p. 33. Indeed the reference in Barry v. Butlin to the will of a "free and capable" testator would havesupported that view.

Nevertheless, the principle has become firmly entrenched that fraud and undue influence are to be treated as anaffirmative defence to be raised by those attacking the will. They, therefore, bear the legal burden of proof. No doubt this reflects thepolicy in favour of honouring the wishes of the testator where it is established that the formalities have been complied with, andknowledge and approval as well as testamentary capacity have been established.

To disallow probate by reason of circumstances merelyraising a suspicion of fraud or undue influence would tend to defeat the wishes of the testator in many cases where in fact no fraud orundue influence existed, but the propounder simply failed to discharge the legal burden. Accordingly, it has been authoritativelyestablished that suspicious circumstances, even though they may raise a suspicion concerning the presence of fraud or undue influence,do no more than rebut the presumption to which I have referred. This requires the propounder of the will to prove knowledge andapproval and testamentary capacity.

The burden of proof with respect to fraud and undue influence remains with those attacking the will. See Craig v. Lamoureux, (UK JCPC), [1920] A.C. 349; Riach v. Ferris, (SCC), [1934] S.C.R. 725; ReMartin, supra. [39] Mr. Newton's standard practice was to insist upon meeting with the client alone, at their first meeting, to get a sense of theirability to understand what was involved with a testamentary disposition, and the names of those family members for whom ordinarilyprovision would be made in the Will.

Sometimes he recorded the reasons in the instrument itself if provision was not being made for,say, a family member or spouse. Sometimes he would not. In this case he did not. [40] The extant notes in the file, upon its recovery from storage, were acknowledged by Mr. Newton to be in his handwriting.

Healso said there would have been more notes in the file originally. [41] The notes which remained in the file, from what he felt to have been the original (perhaps hurried) telephone conversation withthe Testatrix, specifically mentioned only one of her children, namely, the respondent Juanita Foster. [42] Admittedly, the area of the notes in which her name is mentioned, if viewed in isolation, is somewhat cryptic: Juanita foster – daughter – threatened Paul and I Sherry+ Paul Specifically exclude them from the Will [43] That said, the conclusion of these notes "Sherry + Paul to be Power of Attorney" makes it unlikely in the extreme that they werethe ones being excluded.

Moreover, the use of the words "exclude them", when Juanita Foster is the only child of the Testatrix to havebeen mentioned by name in these notes, suggests that her other children (Gary Foster and Sharon Berglund) were discussed with Mr.Newton as well. [44] I juxtapose the above with Ms. Foster's own evidence. For example, in her affidavit filed January 17, 2020 (Exhibit “6”) Ms.Foster acknowledged: 4. Although my relationship with my mother was contentious, we were back and forth for years. My father, Sgt.

Wallace Gordon Fosterpassed away as noted previously, she became extremely bitter and had no problem taking her anger and hate on myself and as timepassed on my brother. ... 16. As for my mother leaving her three children out of her Will, I believe with all my heart and soul that Sherry coerced my mother.

Asher relationship with her children was contentious and her nasty disposition all you would have to do is constantly run us down as Sherrywas doing to make mom more hateful than ever towards us over the course of time. [45] Having considered the above, as well as all of the evidence presented in the course of this Application, including Mr. Newton’sstandard practice in circumstances such as these, I am satisfied, on the balance of probabilities, that the Testatrix knew and approved thecontents of her Will, and that she had made a conscious decision to exclude her children from it.

While this is a very hurtfulcircumstance for the latter, it is not, standing on its own, a "suspicious circumstance" as in Vout, supra. A Testator is essentially freefrom dispositive constraints. [46] Whether Ms. Kenney ought to have excluded her children is another question, one which is not for the Court to decide. This isnot, for example, an Application under the Testator's Family Maintenance Act, R.S., c. 465, s. 1.

If it were, one of the issues which theCourt could be called upon to decide would be whether, having regard to that Legislation, “adequate provision” ought to nonetheless bemade for them out of the Estate. [47] As for whether “suspicious circumstances” are present here, this is what Sopinka J. (speaking for the Supreme Court ofCanada) said in Vout (supra) at para. 25: …The suspicious circumstances may be raised by (1) circumstances surrounding the preparation of the will, (2) circumstances tending tocall into question the capacity of the testator, or (3) circumstances tending to show that the free will of the testator was overborne by actsof coercion or fraud… [48] We have already dealt with the evidence “surrounding the preparation of the Will”.

As to the issue of undue influence, I

conclude that the evidence is insufficient to suggest the presence of this factor. [49] It is indisputable (to repeat) that the Testatrix excluded her children from the Will. Yet, whatever the reason for the complexand unfortunate dynamic that existed between her, the Respondent, and the rest of her offspring, it appears to have its origin around thetime that Ms.

Kenney’s husband died, when her children were very young, which was (of course) well before the Applicants were born. [50] It is clear that the Respondent believes that undue influence was brought to bear upon her mother by the Applicants, and thatthis is the reason that she and her siblings were excluded from the Will. Yet, very little in the way of concrete evidence, aside from hersubjective rationalization of their exclusion by her mother, has been provided. [51] As to incapacity, there is consensus that Ms. Kenney developed Alzheimer's Disease in her later years.

But we do not knowspecifically when, how rapidly it progressed, or how, if at all, it affected her during the time period which is material to this Application. [52] The Testatrix died in 2018. In May 2005, when the Will was executed, she appears to have been living on her own. She wasable to drive her own vehicle. Although in receipt of assistance from time to time from the Applicants, the Respondent, and her otherchildren, she does not appear to have been dependent upon anyone else to get on with the activities of daily living. [53] Ms. Kenney did not enter Ivany Place until 2010.

There is little if any evidence of decline in mental aptitude, function or herbehaviour, until that time. No medical evidence was called at all. Nothing which might conceivably impact upon her testamentarycapacity, in May 2005, has been established. [54] In sum, there is really no evidence of undue influence or incapacity (on May 30, 2005) at all. Nor are there any othercircumstances which suggest that the free will of the Testatrix was overborne by acts of coercion or fraud. [55] The presumption of capacity on the part of Ms. Kenney remains extant.

It has not been rebutted by the Respondent. [56] That said, it is necessary to state that I did not find there to be any substance to the "suggestion" by the Applicants as to thereason for the disappearance of the original Will. The Applicants’ evidence implied that the Respondent either arranged thatdisappearance, or had something to do with it.

This was because one or both of them allegedly saw her, on one occasion, come out ofthe bathroom of the Testatrix’s house (where they say the safety deposit box and Will had been stored) with a garbage bag, claiming shewas taking some laundry items home to clean them. [57] Fraud is a very serious allegation, even in a civil context.

As David Chipman, J.A. (as he then was), explained in Dhawan v.College of Physicians and Surgeons of Nova Scotia, 1998 NSCA 83, at pp. 5 – 6: …"Clear" and "convincing" proof based on "cogent" evidence is required only because the gravity of the charge is such that somethingless is not sufficient to warrant the conclusion that the balance of probabilities has been tilted. In Continental Insurance Co. v.

DaltonCartage Co., (SCC), [1982] 1 S.C.R. 164, Laskin, C.J.C., speaking for the Court, said at p. 169: Where there is an allegation of conduct that is morally blameworthy or that could have a criminal or penal aspect and the allegation ismade in civil litigation, the relevant burden of proof remains proof on a balance of probabilities. So this Court decided in Hanes v.Wawanesa Mutual Insurance Co., (SCC), [1963] S.C.R. 154 ... Laskin, C.J.C. then quoted the following passage from the decision of Lord Denning in Bater v.

Bater, [1950] 2 All E.R. 458 at p. 459: It is true that by our law there is a higher standard of proof in criminal cases than in civil cases, but this is subject to the qualification thatthere is no absolute standard in either case. In criminal cases the charge must be proved beyond reasonable doubt, but there may bedegrees of proof within that standard. Many great judges have said that, in proportion as the crime is enormous, so ought the proof to beclear. So also in civil cases. The case may be proved by a preponderance of probability, but there may be degrees of probability withinthat standard.

The degree depends on the subject-matter. A civil court, when considering a charge of fraud, will naturally require ahigher degree of probability than that which it would require if considering whether negligence were established.

It does not adopt sohigh a degree as a criminal court, even when it is considering a charge of a criminal nature, but still it does require a degree of probabilitywhich is commensurate with the occasion. [Emphasis added] [58] Even if I were to set aside the inconsistencies in each of the Applicants’ evidence about the “laundry episode” allegedlyinvolving the Respondent and accept their evidence as to what they claim to have seen, it would be a considerable “leap” for me to drawthe inference that they urge. Their evidence is nowhere close to even being clear, let alone convincing. 3.

Should the photocopy of the original Will be admitted to Probate? [59] I have earlier made reference to s. 31 of the Probate Act. However, s. 69(1) of the Probate Court Practice, Procedures andForms Regulations, N.S. Reg.119/2001 must also be considered: If an original Will is lost or destroyed, the validity and content of the Will shall be proved in accordance with s. 31 of the Act uponapplication for proof in solemn form, unless the Court orders otherwise. [60] A presumption arises, in some circumstances, when the original of a Will goes missing.

Sometimes it is presumed to have beenintentionally revoked by the Testatrix before her death. If the circumstances are such that this presumption arises, then the proponents ofthe Will, in this case the Applicants, would have to rebut it.

[61] Our Court of Appeal has summarized the circumstances in which revocation will be presumed. In Brimicombe v. BrimicombeEstate, 2000 NSCA 67, Flinn, J.A. explained: 4. The law on this subject is not in dispute in this appeal.

The general principles are stated by Professor Feeney in The Canadian Law ofWills, 3rd edition, vol. 1 at pp. 134-135: The same presumption, that of destruction animo revocandi, that arises when a destroyed or mutilated will is found among the testator'spapers 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 fora court to apply the presumption in the first place.

The presumption is often rebutted either by the circumstances tending to show acontrary 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 secondaryevidence as a copy or a draft or solicitor's notes or any other written evidence, and indeed, if it is significantly clear, even oral testimonymay be probated. ... 5.

These principles have been applied by this court in MacBurnie v. Patriquin (1975), (NS CA), 14 N.S.R. (2d) 680.Chief Justice MacKeigan said the following at p. 682: The learned judge accurately expressed and applied the relevant law including particularly the leading case of Sugden v. Lord St.Leonards (1876), 1 P.D. 154 (C.A.), and some of the many cases following it. The principle is in my opinion accurately expressed in theheadnote from the Sugden case as it appears in [1874 - 80] All E.R.

Rep. 21 as follows: Where a will which was kept in the custody of the testator has been lost the presumption arises that the testator destroyed the will animorevocandi, but that presumption, although presumptio juris, is not presumptio de jure, and may be rebutted by evidence, written or oral,of the facts. The presumption will be more or less strong according to the character of the custody which the testator had over the will. 6. While the authorities refer to the fact that strong evidence is required to rebut this presumption, it is clear that the burden is nostronger than that of a balance of probabilities.

As Cockburn, C.J. expressed it in the seminal case of Sugden v. Lord St. Leonards (1876),1 P.D. 154 at p. 218, the question is "whether it is or is not probable that the will should have been destroyed by the testator". 7. It is also clear that this presumption of revocation (where the will is lost) does not apply where the will cannot be traced to thepossession of the testatrix. (See: Re Annie Douglas Moore (1940), (NB CA), 15 M.P.R. 357 (N.B.S.C.A.D.) - ReGoudge's Estate (1978), (NB KB), 26 N.B.R. (2d) 258 (N.B. Prob. Ct.)) [Emphasis added] [62] Further, as Justice Norton observed in Villeneuve v.

Estate of Margaret MacPherson, 2019 NSSC 88: Because revocation requires animus revocandi, the presumption does not arise if the loss is known to have occurred during a period ofincapacity. [63] It is uncontested that the Testatrix had kept her "important papers" in a safety deposit box. The evidence of the Applicantsfluctuates on whether it was kept under her bed, or in the bathroom. But all have conceded that the box existed, and that it does notappear to have been among the effects which Ms.

Kenney brought with her to Ivany House in 2010, when she reached the point whereshe was unable any longer to continue to care for herself in her own home. It is not necessary to agree with the Applicants that the lattermerely brought with her "the clothes on her back" when she entered the home (a proposition to which the Respondent took considerableexception) to observe that virtually no one has suggested that the Testatrix took either the Will or the box with her. [64] The Will clearly appears to have been out of Ms. Kenney's possession for the final eight years of her life.

These were yearsmarked by another fact which is conceded by all, namely, that she had developed Alzheimer's Disease, and that it progressed rapidly overthis period. [65] I also accept that there were a number of family members and friends who assisted with her care and had access to theTestatrix’s home during the interval from 2010 until her death in 2018. This evidence is consistent with any of them having had theability to remove the box. [66] It is certainly suggestive in this respect that Ms.

Foster (whose evidence on this point I accepted) testified that she wascontacted, anonymously, by mail, by someone who evidenced a knowledge of the contents of Ms. Kenney's Will after the latter hadmoved to Ivany Place. This was knowledge of a type which could have only come from that "contact" having actually seen thedocument. [67] Ultimately, there is not one iota of evidence that Ms. Kenney's view of either the Applicants, or her own children, changedbetween the years 2005 (when she made the Will) to 2010 when she moved into Ivany house without it.

Moreover, not only did she failto have the Will in her possession during the final eight years of her life, thus rendering it beyond her ability to destroy or mutilate it overthat period, her capacity to muster the requisite intent (the animus revocandi) to do so was not likely present, in any event, for at least asignificant portion of this period due to what all conceded was the rapid progress of her disease during that interval. [68] I conclude, in all of the circumstances, that the presumption of revocation by the Testatrix, by virtue of the missing or lostoriginal Will, does not arise in the circumstances of this case.

Since the presumption does not arise, there is no need for the Applicants torebut it. Conclusion

[ 69 ] Consequently, I have concluded that, on a balance of probabilities, the late Ms. Kenney’s testamentary intent is best represented by what I have been satisfied is an exact photocopy of her last Will and Testament dated May 30, 2005 (Exhibit 2). The application is granted, which is to say that I grant probate of the contents of Ms. Kenney’s Last Will and Testament, as represented by the photocopy thereof. Costs [ 70 ] The Applicants have been successful and ordinarily would be entitled to their costs of this Application.

The manner in which they went about effecting service of these documents upon the Respondent via Ms. Foster's grandson, James, and their unsubstantiated allegations of the Respondent’s complicity (at the very least) in the disappearance of the original Will, have impacted this. I must also take note that the Respondent herself made a number of allegations against the Applicants, some of which were also unsubstantiated and were, at the very least, inflammatory. The parties shall each bear their own costs. Gabriel, J.