Portrusching Estate (Re)

Portrusching Estate (Re)

The court admitted the copy to probate because the proponent produced sufficient secondary evidence on a balance of probabilities to rebut the presumption of revocation: a solicitor’s contemporaneous copy and testimony of preparation and execution, corroborating affidavits showing estrangement from the father who would have benefited, and evidence of extensive travel making loss plausible; there was no opposing evidence to sustain the presumption of destruction.

Citation
2009 NSSC 229
Parties
Applicant/executor: Robie MacDonald; Deceased: James Portrusching; Interested Person: Frank Portrusching; Interested Person: Sandra Portrusching; Interested Person: Janice Portrusching
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
4 June 2009
Procedural Posture
Probate Proof in Solemn Form / Decision on Application
Outcome
Application granted; copy of Last Will and Testament admitted to probate in solemn form
Legal Topics
Proof of Lost Will, Presumption of Revocation (destruction Animo Revocandi), Admission to Probate, Secondary Evidence, Burden of Proof
Source Language
English
Probate Wills Estates Succession Proof of Lost Will Presumption of Revocation (destruction Animo Revocandi) Admission to Probate Secondary Evidence +1 more

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Parties

Robie MacDonald

Applicant/executor

James Portrusching

Deceased

Frank Portrusching

Interested Person

Sandra Portrusching

Interested Person

Janice Portrusching

Interested Person

Procedural Posture

Probate Proof in Solemn Form / Decision on Application

Legal Issues

  1. 1 Whether a copy of a lost will can be admitted to probate in solemn form
  2. 2 Whether the presumption that a will last in the testator's possession was destroyed animo revocandi has been rebutted
  3. 3 Whether there is sufficient secondary evidence of due execution to admit the copy to probate

Ratio Decidendi

The court admitted the copy to probate because the proponent produced sufficient secondary evidence on a balance of probabilities to rebut the presumption of revocation: a solicitor’s contemporaneous copy and testimony of preparation and execution, corroborating affidavits showing estrangement from the father who would have benefited, and evidence of extensive travel making loss plausible; there was no opposing evidence to sustain the presumption of destruction.

Court Disposition

Application granted; copy of Last Will and Testament admitted to probate in solemn form

Orders

  • Admit to Probate the copy of the Last Will and Testament attached to Gerald MacDonald’s affidavit
  • Costs of the application to be paid out of the proceeds of the estate