On The Case! – Holographic Wills in NS? (Pt.5)

Part 5 of 4? – On Appealing!

This is an update to my Four-Part Post - ‘On the Case! – Holographic Wills in NS?’[i], published on August 19th, 24th , 28th & September 1st, 2015.

The first three Parts gave an overview of Holographic Wills, with some ‘unique’ examples.  They  also introduced the ‘substantial compliance’ provision found in S. 8A of the Wills Act (NS), that may save a writing even if not signed by a Testator -  as long as it evidences ‘testamentary intent’. 

Finally, they were intended to set the stage for the Honourable Justice Pierre Muise’s decision in Scott v. Smith Estate, which I reported on in Part Four[ii]. 

You will recall that Justice Muise, allowed the Estate’s Application to set aside the Will that had been submitted by the Executor and accepted by the Probate Court in ‘common form’[iii] and ruled that the writing was not signed and therefore not a Holographic Will; nor, was it saved by S. 8A.

Justice Muise  found that it did not evidence the ‘fixed and final intention’ of the Late Daryl Smith notwithstanding he found it was a reasonable disposition of his meager estate, as between his common law spouse of 4 years, Krista Scott, and his children form his first marriage.

In the comment section of Part Four, I promised to update everyone if there was an Appeal, in response to a comment by my friend Phil Tabor, given his observation and request:

“These have been very interesting articles Kevin. The decision on the Daryl Smith document seems an odd one to my untutored eye - I hope you'll be following up with Part 5, if and when it is contested!”

To quote another good friend, now jurist (whose name I withhold for propriety sake):

“I love the law”! 

I do too and one of the things I especially love about our legal system is that if you are not satisfied with the results at trial, you generally have the right to Appeal the decision, in most cases, to the Nova Scotia Court of Appeal. 

I am happy to report, that veteran Crowe Dillon Robinson litigator, Allen C. Fownes, has filed an Appeal on behalf of Krista Scott, to have the decision reviewed by the Court of Appeal, where typically three Justices, will give the trial decision a ‘sober second though’[iv].  

In my experience less than 7 - 10% of trial decisions are appealed.  Of those less than 5-7% are successful – yikes!   Although there is a distinction between odds and probability; and, statistics don’t reflect the merits of an individual appeal, clearly the ‘numbers’[v]  suggest that undertaking an appeal is a risky step, with potentially huge adverse cost consequences.  

In light of these ‘odds’ why does anyone ever appeal a trial decision?  To quote modern philosophers Jagger & Richards[vi]:

“You can't always get what you want; but, if you try, sometimes you just might find, you get what you need!”

I will make sure to publish the outcome in Part 6 of 4, once the results are in from an Appeal Hearing that will be schedule soon and is anticipated to take place sometime in the Spring, 2016.

To help refresh your memory, here is the writing at issue that Allen and Krista maintain is the Lat Will and Testament of the Late Daryl Smith. Time will tell if the Court of Appeal agrees! 

Thank you to Nova Scotia Judiciary's Director of Communications, John Piccolo for arranging permission of  Chief Justice J. Michael MacDonald, allowing me to take the above Photo of Court Room 502, The Law Courts, where the Court of Appeal typically sits.  

This angle was chosen as it shows the portrait of immediate past Chief Justice Constance R. Glube, OC, ONS , who was the 21st Chief Justice of Nova Scotia (1998 - 2004) and first female Chief Justice in Canada.

PS: I hope you have a Happy Halloween and to help brighten your day, here is an early appearance by the youthful Rolling Stones on the David Frost Show in 1969, performing “You Can't Always Get What You Want”, shortly after it was written.

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[i] Part 1 is found at: https://www.dhirubhai.net/pulse/case-holographic-wills-ns-pt1-kevin-a-macdonald

Part 2 is found at: https://www.dhirubhai.net/pulse/case-holographic-wills-ns-pt2-kevin-a-macdonald

Part 3 is found at: https://www.dhirubhai.net/pulse/case-holographic-wills-ns-pt3-kevin-a-macdonald

 [ii] Part 4 is found at: https://www.dhirubhai.net/pulse/case-holographic-wills-ns-pt4-kevin-a-macdonald

 [iii] According to my website’s legal wiki :  Common Form - Refers to the most usual form of probating a Will. It is distinguished from proof in solemn form. Common Form proof usually involves filing of the Will and an affidavit from one or more of the witnesses to the Will confirming that the testator was of sound mind when they signed the Will. If there is any concern about whether or not the Will is the valid Will, or the testator was of unsound mind, a trial may take place to prove the validity of the Will. This trial is considered proof in solemn form.

 [iv] The expression dates back to 1867, when Canada's first Prime Minister, The Right Honourable Sir John A. Macdonald, in describing the function of the proposed Senate, said:    "... the Upper House ... which has the sober second-thought in legislation ....It must be an independent House, having a free action of its own, for it is only valuable as being a regulating body, calmly considering the legislation initiated by the popular branch, and preventing any hasty or ill-considered legislation which may come from that body, but it will never set itself in opposition against the deliberate and understood wishes of the people." - Parliamentary Debates on Confederation of British North American Provinces [Quebec 1867, Ottawa, 1951]

 [v] For an interesting look at the numbers you may want to visit Toronto lawyer, Addison Cameron-Huff’s, Canadian Supreme Court Odds of Winning Calculator (February, 2015).

 [vi] A piece of 60’s wisdom, written by Mick Jagger and Keith Richards, in the Rock Anthem, “You Can't Always Get What You Want”, as performed by the Rolling Stones, ? Abkco Music, Inc.