IN THE SUPREME COURT OF NOVA SCOTIA
Citation: Portrusching Estate, (Re) 2009 NSSC 229
Date: 20090604
Docket: SPH2127
Registry: Port Hawkesbury
Between:
In the Court of Probate for Nova Scotia
In the Estate of James Portrusching, Deceased
Judge: The Honourable Justice Simon J. MacDonald
Heard: June 4, 2009 in Port Hawkesbury, Nova Scotia
Release of Oral Decision: July 20, 2009
Counsel: Ann Levangie, on behalf of the Applicant
By the Court Orally:
BACKGROUND
[1] This is an application by Robie MacDonald for Proof in Solemn Form of a copy of an original Last Will and Testament of James Portrusching.
[2] Mr. Portrusching died in Almaty Kazakhstan on August 20, 2008 at the age of 42.
[3] Under the provisions of the Probate Act, Frank Portrusching, Sandra Portrusching, Janice Portrusching and Robie MacDonald are persons interested in the Estate.
[4] A diligent search for the original Last Will and Testament of the late James Portrusching was conducted and none was found.
[5] A copy of the proposed Last Will and Testament of Mr. Portrusching was found at the Law Office of Mr. Gerald MacDonald in Port Hawkesbury, Nova Scotia. It was made in 2004.
[6] Mr. Robie MacDonald is the named Executor therein and brings this application as such.
THE LAW
[7] The law in this matter is set out and summarized in the Nova Scotia Court of Appeal Decision Brinicombe v. Brinicombe (2000) NSJ No. 157 where Flinn, J.A. said at paragraphs 4, 5, 6 and 7:
“4. The law on this subject is not in dispute in this appeal. The general principles are stated by Professor Feeney in The Canadian Law of Wills, 3rd Edition, vol. 1 at pg. 134-135.
The same presumption, that of destruction animo revocandi, that arises when a destroyed or mutilated will is found among the testator’s papers on his death, arises also when it is shown that the testator’s will was last traced to his possession but cannot be found on his death. The presumption is well recognized in Canadian case law, but the fullest inquiries for the lost will must be shown to have been made for court to apply the presumption in the first place. The presumption is often rebutted either by the circumstances tending to show a contrary conclusion or by declarations made by the testator showing that he regarded the lost will as valid and subsisting. However, strong evidence is usually needed to rebut the presumption.”
When the presumption is rebutted, probate may be granted of the contents of the lost will after proof of due execution, on such secondary evidence as a copy or a draft or solicitor’s notes or any other written evidence, and indeed, if it is significantly clear, even oral testimony may be probated....”
5. These principles have been applied by this court in MacBurnie v. Patriquin, (1975), 14 N.S.R. (2d) 680. Chief Justice MacKeigan said the following at p. 682:
“The learned judge accurately expressed and applied the relevant law including particularly the leading case of Sugden v. Lord St. Leonards (1876), 1 P.D. 154 (C.A.) and some of the many cases following it. The principle is in my opinion accurately expressed in the headnote from the Sugden case as it appears in [1874-80] All E.R. Rep. 21 as follows:
Where a will which was kept in the custody of the testator has been lost the presumption arises that the testator destroyed the will animo revocandi, but that presumption, although presumption juris, is not presumtio de jure, and may be rebutted by evidence, written or oral, of the facts. The presumption will be more or less strong according to the character of the custody which the testator had over the will.”
6. While the authorities refer to the fact that strong evidence is required to rebut this presumption, it is clear that the burden is no stronger than that of a balance of probabilities. As Cockburn, C.J. expressed it in the seminal case of Sugden v. Lord St. Leonards (1876), 1 P.D. 154 at p. 218:
the question is “whether it is or is not probable that the will should have been destroyed by the testator.”
7. “It is also clear that this presumption of revocation (where the will is lost) does not apply where the will cannot be traced to the possession of the testatrix. (See: Re Annie Douglas Moore (1940), 15 M.P.R. 357 (N.B.S.C.A.D.) - Re Goudge’s Estate (1978), 26 N.B.R. (2d) 258 (N.B. Prob.Ct.).”
[8] Williams on Wills (2nd Ed.) at page 106 states:
“If a will was last traced to the possession of the testator and is not forthcoming at his decease, there is a prima facie presumption, in the absence of circumstances tending to a contrary conclusion, that the testator destroyed it, with the intention to revoke it...
...The presumption may, it seems, also be rebutted by a consideration of the contents of the will itself, or by showing that the testator had no opportunity of destroying the will, or that it had been lost or destroyed without his privity or consent.
...Where there is proof that a will was duly executed, the onus of proof is first upon the party setting up revocation to prove such revocation, but when the above presumption of revocation arises from the will being [*page264] mutilated or not forthcoming at the death of the testator, the onus lies upon those propounding the will to rebut that presumption.”
DISCUSSION AND CONCLUSION
[9] First of all I am satisfied the persons interested in the estate and these proceedings have received notice. The court was notified that Mr. Frank Portrusching had discussed this matter with counsel, Mr. Larry Graham. His counsel wrote on his behalf that Mr. Frank Portrusching is no longer involved in the matter and he was not going to oppose or file any documentation in relation to this matter. I conclude he has received advice from Mr. Graham and he is not opposed to the Application.
[10] The affidavits of Sandra Portrusching, the sister of James Portrusching and Robie MacDonald’s, convince me that it’s obvious James Portrusching and his father, Frank Portrusching were definitely estranged. I find further this continued up until James Portrusching’s death.
[11] I’m impressed with the Affidavit of Gerald MacDonald, Barrister and Solicitor, who prepared the Will for Mr. Portrusching. He had a clear recollection of conversations he had with Mr. Portrusching. He told of stories and friendly conversations with Mr. Portrusching. An example, is Mr. Portrusching’s being held at gunpoint in a hotel. He told of drafting Mr. Portrusching’s will and of the late Mr. Portrusching’s estrangement from his father, Mr. Frank Portrusching.
[12] Mr. MacDonald had a copy of the Last Will and Testament in his computer records and this is the will the proponent wishes to have proved in solemn form before the court today.
[13] I am further satisfied when the late Frank Portrusching executed this will he did so freely and understanding its contents. It was duly executed.
[14] All affidavits summarize the excellent relationship between Robie MacDonald and events that occurred between he and the late James Portrusching. It would not make the application and entitlement to Robie MacDonald appear to be out of order. They had what I conclude to be a very close relationship.
[15] Furthermore, given the contents of the Affidavits it appears to me and I so find the relationship between the late James Portrusching and his sister, Sarah Portrusching, and Robie MacDonald, continued to be a good, solid relationship until his death.
[16] It’s obvious, as I said earlier, and I find he never resolved his differences with his father, Frank Portrusching. It would be highly improbable on the facts in front of me that he would have destroyed the Will. To do so would allow all the benefits of his estate go to his father, Frank Portrusching. I conclude from the affidavits of Gerald MacDonald, Sandra Portrusching and Robie MacDonald, it is clear that would be the one person he would not want it to go to.
[17] I am satisfied the lifestyle of the late James Portrusching as a chef showed he travelled around the world working. He passed away in Afghanistan. He was in Russia and other locations. I conclude it is highly likely he lost his Last Will and Testament in his travels to various parts of the world to work. He really didn’t have a base or a home located where one could search the house for his Last Will and Testament.
[18] Mr. Portrusching also told his sister, Sandra Portrusching, that he wanted to ensure that Robie MacDonald got his property if he died.
[19] Consequently, I am satisfied on the evidence presented that the presumption Mr. Portrusching destroyed or revoked his will has been rebutted in this case. Thus I will admit to Probate the copy of Mr. Portrusching’s will as attached to Mr. Gerald MacDonald’s Affidavit.
[20] The costs of the Application are to be paid out of the proceeds of the Estate.
J.