Connell v. Connell

Connell v. Connell

The majority held that the propounder/draftsman discharged the onus to prove the testator knew and approved the will by evidence that the instrument was read to the testator, his long subsequent life of sixteen years without revocation and his repeated statements about having made a will; however the residuary clause was not an absolute gift but an indefinite trust/power and failed for uncertainty.

Citation
(1906) 37 SCR 404
Parties
Appellants (defendants): Richard Connell and Others; Respondents (plaintiffs/executors): William Connell and Martin Connell
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
14 April 1906
Procedural Posture
Probate Appeal (will) / Appeal to Supreme Court of Canada From Court of Appeal for Ontario
Outcome
Appeal dismissed.
Legal Topics
Execution of Wills, Onus Where Draftsman Is Beneficiary, Certainty of Residuary Trust, Attestation Requirements
Source Language
English
Estates Wills Trusts Probate Execution of Wills Onus Where Draftsman Is Beneficiary Certainty of Residuary Trust Attestation Requirements

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Parties

Richard Connell and Others

Appellants (defendants)

William Connell and Martin Connell

Respondents (plaintiffs/executors)

Procedural Posture

Probate Appeal (will) / Appeal to Supreme Court of Canada From Court of Appeal for Ontario

Legal Issues

  1. 1 Whether the will was properly executed and attested according to statutory requirements
  2. 2 Whether the draftsman and beneficiary (executor) discharged the onus to prove the testator knew and approved the will when suspicious circumstances existed
  3. 3 Whether the residuary devise created a valid trust or failed for uncertainty

Ratio Decidendi

The majority held that the propounder/draftsman discharged the onus to prove the testator knew and approved the will by evidence that the instrument was read to the testator, his long subsequent life of sixteen years without revocation and his repeated statements about having made a will; however the residuary clause was not an absolute gift but an indefinite trust/power and failed for uncertainty.

Court Disposition

Appeal dismissed.

Orders

  • Appeal dismissed with costs.
  • Residuary devise declared void for uncertainty (trust fails).