NORMAN V. THE TRUSTEES EXECUTORS & AGENCY COMPANY LIMITED

THE TRUSTEES EXECUTORS & AGENCY COMPANY LIMITED

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ORAL REASONS FOR JUDGMENT

Judgment delivered at... S¥ADE@Y. 'W, M. Houston, Govt. Print. Me!b. . 'on Wednesday. 28th March. 1956. __

©.1978/55

NORMAN

THE TRUSTEES EXECUTORS & AGENCY COMPANY TINTTED

JUDGMENT (ORAL)

McTIERNAN J. esiseuncoes TAYIOR J.

NORMAN Ve

THE TRUSTEES EXECUTORS & AGENCY COMPANY LIMITED

JUDGMENT (CORAL)

McTIERNAN J. The questions with which the Court is concerned are: (1) whether the deceased was a capable testatrix; (2) whether she knew and approved of the contents of the will and codicils of which the plaintiff claimed probate. The onus of proof im respect of each issue rests upon the plaintiff.

Dr. Louat wisely decided not to press the issues of due execution and undue influence.

The standard by which the question whether the onus of proving testamentary capacity is discharged is stated in these terms in the case of Worth v. Clasohm, (1952) 86 C.1.R. 439 at p. 453: .

"A doubt being raised as to the existence of testamentary capacity at the relevant time, there undoubtedly rested upon the plaintiff the burden of satisfying the conscience of the Court that the testatrix retained her mental powers to the requisite extent. But that is not to say that he was required to answer the doubt by proof to the point of complete demonstration, or by proof beyond a reasonable doubt. The criminal standard of proof has no place in the trial of an issue as to testamentary capacity in a probate action. The effect of a doubt initially is to require a vigilant examination of the whole of the evidence which the parties placed. before the Court; but, that examination having been made, a residual doubt is not enough to defeat the plaintiff's claim for probate unless it is felt by the Court to be substantial enough to preclude a belief that the document propounded is the will of a testatrix who possessed sound mind, memory and understanding "at the time of its execution."