Das Estate (Re)

Das Estate (Re)

The Court held that (1) two informal documents found with the deceased were admissible as persuasive evidence under s.8A but did not alter the April 2010 will; (2) the testator had testamentary capacity; (3) the account number typo was corrected as falsa demonstratio; and (4) because the will failed to provide for the RBC investment account and the residuary gift was conditional on the wife predeceasing within ten days, the Court could not supply omitted words or identify beneficiaries with sufficient certainty to create a trust; consequently the investment account and the undisposed residue passed on a partial intestacy to the surviving spouse and daughter pursuant to the Intestate...

Citation
2012 NSSC 441
Parties
Applicant; Personal Representative, Executrix and Trustee Under the Last Will and Testament of Hari Das: Mallika Das; Respondent; Daughter and Alternate Executor/trustee Named in Will: Nitya Deepa Das (Acevedo)
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
18 December 2012
Procedural Posture
Probate and Estate Will Interpretation and Motion for Directions / Decision on Motion for Directions (written Reasons)
Outcome
Declare partial intestacy: RBC Direct Action Investment Account and residue not effectively disposed by will and to pass to surviving spouse and daughter under Intestate Succession Act; costs to applicant on solicitor‑client basis; directions to provide certified copies of reasons and order to respondent and named...
Legal Topics
Testamentary Capacity, Construction of Wills, Partial Intestacy, Falsa Demonstratio, Testamentary Writings (s.8 A), Charitable Purpose Trust Validity
Source Language
English
Wills and Estates Probate Trusts Charity Law Succession Law Testamentary Capacity Construction of Wills Partial Intestacy +3 more

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Parties

Mallika Das

Applicant; Personal Representative, Executrix and Trustee Under the Last Will and Testament of Hari Das

Nitya Deepa Das (Acevedo)

Respondent; Daughter and Alternate Executor/trustee Named in Will

Procedural Posture

Probate and Estate Will Interpretation and Motion for Directions / Decision on Motion for Directions (written Reasons)

Legal Issues

  1. 1 What constitutes testamentary writing(s) under s.8A of the Wills Act?
  2. 2 Whether testator had testamentary capacity at execution of April 2010 will and immediately prior to death
  3. 3 Whether erroneous account number is to be treated as falsa demonstratio

Ratio Decidendi

The Court held that (1) two informal documents found with the deceased were admissible as persuasive evidence under s.8A but did not alter the April 2010 will; (2) the testator had testamentary capacity; (3) the account number typo was corrected as falsa demonstratio; and (4) because the will failed to provide for the RBC investment account and the residuary gift was conditional on the wife predeceasing within ten days, the Court could not supply omitted words or identify beneficiaries with sufficient certainty to create a trust; consequently the investment account and the undisposed residue passed on a partial intestacy to the surviving spouse and daughter pursuant to the Intestate...

Court Disposition

Declare partial intestacy: RBC Direct Action Investment Account and residue not effectively disposed by will and to pass to surviving spouse and daughter under Intestate Succession Act; costs to applicant on solicitor‑client basis; directions to provide certified copies of reasons and order to respondent and named...

Orders

  • Declare that the RBC Direct Action Investment Account (account identified in will, corrected by falsa demonstratio) and the undisposed residue are not effectively disposed by the April 23, 2010 Will and are subject to partial intestacy
  • Direct that the undisposed estate funds be distributed to the surviving spouse, Mallika Das, and daughter, Nitya Deepa Das (Acevedo), in accordance with the Intestate Succession Act, R.S.N.S. 1989, c.236