Strickland Estate (Re)

Strickland Estate (Re)

Absent the referenced memorandum the court will read clauses 6 and 22 as if no memorandum existed, allowing the co-executors to distribute unspecified items; and the phrase 'substantial amount' in clause 23C is to be read as referring to a portion of the present residue, which the court fixes between $40,000 and $45,000, reflecting the testatrix's contemplation when making the will.

Citation
2004 NSSC 82
Parties
Testator/deceased: Norma Elizabeth Strickland; Co Executor/applicant: James M. Ryan; Co Executor/applicant: Patricia Ryan; Beneficiary: Marjorie Marshall; Beneficiary: Cheryl Ryan; Beneficiary: Kelly Ryan
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
20 April 2004
Procedural Posture
Will Interpretation / Probate / Application for Directions by Executors; Decision on Interpretation of Will Clauses
Outcome
Application granted
Legal Topics
Will Interpretation, Missing Memorandum, Residuary Clause, Executor Powers, Avoidance of Intestacy
Source Language
English
Wills and Estates Probate Will Interpretation Missing Memorandum Residuary Clause Executor Powers Avoidance of Intestacy

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Parties

Norma Elizabeth Strickland

Testator/deceased

James M. Ryan

Co Executor/applicant

Patricia Ryan

Co Executor/applicant

Marjorie Marshall

Beneficiary

Cheryl Ryan

Beneficiary

Kelly Ryan

Beneficiary

Procedural Posture

Will Interpretation / Probate / Application for Directions by Executors; Decision on Interpretation of Will Clauses

Legal Issues

  1. 1 Effect of a missing memorandum referenced in the will
  2. 2 Whether executors have discretion to distribute items in absence of memorandum
  3. 3 Meaning of 'substantial amount' in residuary clause 23C and what sum it denotes

Ratio Decidendi

Absent the referenced memorandum the court will read clauses 6 and 22 as if no memorandum existed, allowing the co-executors to distribute unspecified items; and the phrase 'substantial amount' in clause 23C is to be read as referring to a portion of the present residue, which the court fixes between $40,000 and $45,000, reflecting the testatrix's contemplation when making the will.

Court Disposition

Application granted

Orders

  • Clauses 6 and 22 of the will shall be read as if they did not refer to a memorandum.
  • The reference to a 'substantial amount' in clause 23C shall be read to refer to a portion of the present residue of between $40,000 and $45,000.