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Digest of the Week | Execution of a Will

Requirements for Execution of a Will

Re: Estate of Jean Agnes MacDonald Marsden | 2017 NBQB 199 | New Brunswick Court of Queen's Bench

Estates -- Requirements for due execution of will -- General principles

Relief from statutory requirements -- Testator was elderly woman with five children, two of whom, KeiM and KenM, had little, if any, contact with testator over past 20 years -- Testator was admitted to hospital after her previously-diagnosed lung cancer became terminal -- Testator had already made funeral arrangements but had not gotten around to preparing will -- Child CM arranged for lawyer to meet with testator at hospital, and lawyer prepared will in accordance with testator’s instructions -- Will provided that KeiM and KenM would each receive $100 and that remainder of estate would be divided equally among other three children -- Testator died before lawyer brought will to her to execute -- Intended executor of testator’s estate brought application for declaration that unexecuted will was valid and fully effective pursuant to provisions of s. 35.1(a) of Wills Act -- Application granted -- Unexecuted will reflected testator’s deliberate, fixed, and final expression as to disposal of her property upon her death -- Will was prepared at logical time for testator to ensure her affairs were in order -- Lawyer was very experienced and was satisfied that testator had testamentary capacity and that will he prepared upon her instructions reflected her final testamentary intentions -- Unequal disposition of estate did not, on its own, raise any presumption or any basis upon which to question testator’s capacity or instructions to lawyer, and there was no evidentiary basis for impugning will.
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