Wittenberg Estate (Re)

Wittenberg Estate (Re)

The motion to withdraw the issues for lack of evidence was denied because the respondent adduced some evidence of suspicious circumstances and, without assessing credibility or weight, a reasonable trier of fact could, if it accepted the evidence, find for the respondent; accordingly both the suspicious circumstances and undue influence issues remain for determination and proponents may adduce rebuttal evidence.

Citation
2013 NSSC 324
Parties
Applicant/challenger: Richard Wittenberg; Decedent/subject of Proceeding: Estate of Gerda Wittenberg; Named Executrix/proponent: Linda Cashen
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
25 September 2013
Procedural Posture
Probate Proof in Solemn Form (will Validity) / Hearing on Validity; Post‑evidence Motion to Withdraw Issues for Lack of Evidence (pre‑final Findings)
Outcome
Motion to withdraw issues for lack of evidentiary support denied; issues of testamentary capacity (suspicious circumstances) and undue influence remain for determination
Legal Topics
Testamentary Capacity, Undue Influence, Suspicious Circumstances, Non‑suit/withdrawal of Issues, Burden of Proof
Source Language
English
Probate Wills and Estates Civil Procedure Evidence Testamentary Capacity Undue Influence Suspicious Circumstances Non‑suit/withdrawal of Issues +1 more

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Parties

Richard Wittenberg

Applicant/challenger

Estate of Gerda Wittenberg

Decedent/subject of Proceeding

Linda Cashen

Named Executrix/proponent

Procedural Posture

Probate Proof in Solemn Form (will Validity) / Hearing on Validity; Post‑evidence Motion to Withdraw Issues for Lack of Evidence (pre‑final Findings)

Legal Issues

  1. 1 Whether the respondent/appellant has adduced sufficient evidence to establish 'suspicious circumstances' undermining the presumption of testamentary capacity
  2. 2 Whether there is sufficient evidence to support a finding of undue influence by the executrix and whether that issue can be withdrawn for lack of evidence

Ratio Decidendi

The motion to withdraw the issues for lack of evidence was denied because the respondent adduced some evidence of suspicious circumstances and, without assessing credibility or weight, a reasonable trier of fact could, if it accepted the evidence, find for the respondent; accordingly both the suspicious circumstances and undue influence issues remain for determination and proponents may adduce rebuttal evidence.

Court Disposition

Motion to withdraw issues for lack of evidentiary support denied; issues of testamentary capacity (suspicious circumstances) and undue influence remain for determination

Orders

  • Motion for non‑suit/withdrawal of issues denied
  • Issues of suspicious circumstances and undue influence not withdrawn and to proceed to final determination