Which power allows New Brunswick to probate a non-compliant will?

The dispensing power is a crucial legal tool allowing the court to probate a will that does not strictly comply with certain statutory requirements. In New Brunswick, this power enables a judge to validate a will even if it lacks the proper formalities, such as not being witnessed as required by law. The rationale behind this power is to uphold the testamentary intentions of the deceased, ensuring that their wishes regarding the distribution of assets are honored whenever possible.

This approach reflects a preference for substance over form, emphasizing the importance of the testator's intent rather than rigid adherence to procedural technicalities. This flexibility is especially important in cases where the non-compliance does not significantly undermine the integrity of the will or where there is compelling evidence of the testator's intentions.

In contrast, the other options do not pertain to the court's ability to probate a non-compliant will. Testamentary capacity refers to the mental ability of the testator to understand the implications of their actions when creating a will. Executor discretion pertains to the powers and decision-making authority that an executor has in administering an estate, while probate exemption generally refers to scenarios where certain types of assets do not require probate to transfer ownership. Thus, these concepts do not directly address the issue of probate for