Bellegarde, Murdock and Murdock v. Murdock and Murdock, (1978) 25 N.S.R.(2d) 375 (CA)

• Judge: MacKeigan, C.J.N.S., Coffin and Macdonald, JJ.A.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: March 21, 1978
• Jurisdiction: Nova Scotia
• Citations: (1978), 25 N.S.R.(2d) 375 (CA)

Bellegarde v. Murdock (1978), 25 N.S.R.(2d) 375 (CA);

    36 A.P.R. 375

MLB headnote and full text

Bellegarde, Murdock and Murdock v. Murdock and Murdock

Indexed As: Bellegarde, Murdock and Murdock v. Murdock and Murdock

Nova Scotia Supreme Court

Appeal Division

MacKeigan, C.J.N.S., Coffin and Macdonald, JJ.A.

March 21, 1978.

Summary:

This case arose out of the plaintiffs' action against the defendants to set aside alleged gifts made by a deceased to the defendants. An illiterate old woman in failing health went to live with the defendants, her son and daughter-in-law, in the final weeks before her death. During that time the woman transferred her home to her daughter-in-law and converted her bank accounts into joint accounts with her daughter-in-law. The defendants also alleged that shares and debentures were given to them by the woman; although, the forms of transfer on the certificates were not signed. The daughter-in-law refused to permit the plaintiffs, who were the other children of the woman, to see her before her death. After the woman's death the plaintiffs brought an action against the defendants to set aside the alleged gifts. In a judgment reported at paragraphs 39-98 below the Nova Scotia Supreme Court, Trial Division, allowed the plaintiffs' action and set aside the gifts. The Trial Division held that the defendants failed to discharge the burden on them of proving that they did not exercise undue influence over the woman. The defendants appealed.

The Nova Scotia Court of appeal dismissed the appeal and affirmed the judgment of the Trial Division. See paragraphs 1-38.

Civil Rights - Topic 4604

Right to counsel - What constitutes denial of right to counsel - In an action brought by the heirs of an estate to set aside gifts made by a deceased to the defendants, the defendants represented themselves at trial - The trial judge repeatedly informed the defendants that they should have counsel and that they could testify themselves, which they did not do - The trial judge set aside the gifts - The defendants complained on appeal that they did not have counsel and that their case was not as effectively presented as it would have been by counsel - The Nova Scotia Court of Appeal held that the defendants elected to proceed without counsel and could not complain on appeal of their lack of knowledge - See paragraphs 32-35.

Executors and Administrators - Topic 537

Appointment of administrator - Effect of appointment - Doctrine of relation back - One of the heirs of an estate brought an action to set aside certain gifts allegedly made by the deceased - Subsequently the heir was appointed as administratrix of the estate - The defendants challenged the status of the heir to bring the action - The Nova Scotia Court of Appeal held that the letters of administration related back to the date of death of the deceased and legalized all acts done for the estate by the heir - See paragraphs 11-14.

Executors and Administrators - Topic 5701

Actions by and against representatives - Evidence - Corroboration requirement - Evidence Act, R.S.N.S. 1967, c. 94, s. 42 - The Nova Scotia Court of Appeal affirmed the setting aside of alleged gifts made by an old woman, since deceased, to her son and his wife, where there was no corroboration of their testimony respecting the intention of the old woman - See paragraphs 78-79, 83.

Fraud and Misrepresentation - Topic 889

Undue influence - Presumed undue influence - Evidence - Burden of proof - An illiterate old woman in poor health went to live with one of her sons and his wife for the few weeks before her death - During that time she changed her bank accounts into joint accounts with her daughter-in-law and gave a deed to her house to her daughter-in-law - The daughter-in-law refused to permit the woman's other children to see her before her death - The Nova Scotia Court of Appeal held that there was a burden on the daughter-in-law and the son to prove the absence of undue influence on their part over the woman and affirmed the finding of the trial judge that the burden was not discharged and that the transfers should be set aside - See paragraphs 27-28 and 86-97.

Gifts - Topic 558

Gifts inter vivos - Presumption of gift - Transfers where presumption inapplicable - The Nova Scotia Court of Appeal held that there was no presumption of gift in a transfer of property from a woman to her daughter-in-law - See paragraphs 25-28 and 73-81.

Gifts - Topic 724

Gifts inter vivos - Transfers in joint tenancy - Presumption against joint tenancy - A month before her death an illiterate old woman in poor health changed her bank accounts into joint accounts with her and her daughter-in-law, with whom she was living - On the woman's death the daughter-in-law claimed the funds in the accounts - The Nova Scotia Court of Appeal affirmed the decision of the trial judge that, where the funds were all deposited by the deceased woman, the daughter-in-law was not entitled to the funds where there was no presumption of gift to the daughter-in-law and no evidence of the woman's intention to make a gift to her - See paragraphs 25-28 and 73-81.

Practice - Topic 217

Persons who can sue and be sued - Individuals - Persons having interest in estate - The Nova Scotia Court of Appeal held that an heir of the estate of an intestate has standing to bring an action against recipients of alleged gifts by the deceased, if but for the suit assets would be lost to the estate - See paragraphs 11-17.

Practice - Topic 8800

Appeals - Duty of appeal court regarding fact findings by trial judge - The Nova Scotia Court of Appeal refused to disturb the fact findings by a trial judge, where the trial judge did not misinterpret, misconceive, misunderstand or overlook any material facts in evidence and did not apply any wrong principle of law - See paragraphs 29-31.

Cases Noticed:

Murray v. Munro (1915-16), 49 N.S.R. 501, appld. [para. 14].

Fairchild v. Mitchell and Mattatall (1959-60), 43 M.P.R. 9, appld. [para. 15].

In re Craig, dec'd., Meneces et al. v. Middleton et al., [1970] 2 All E.R. 390; [1970] 2 W.L.R. 1219; [1971] Ch. D. 95, refd to. [para. 88]; consd. [para. 16].

Burkett v. Ott (1917-18), 57 S.C.R. 608, consd. [para. 16].

Allcard v. Skinner (1887), 36 Ch. 145 (C.A.), appld. [para. 27 & 86].

Stein et al. v. The Ship "Kathy K" et al. (1975), 6 N.R. 359; [1976] 2 S.C.R. 802, appld. [para. 30].

Talsky v. Talsky (1975), 7 N.R. 246; [1976] 2 S.C.R. 292, appld. [para. 30].

Metivier et al. v. Cadorette (1975), 8 N.R. 129; [1977] 1 S.C.R. 371, appld. [para. 30].

Dorval v. Bouvier, [1968] S.C.R. 288, appld. [para. 30].

Niles v. Lake, [1947] S.C.R. 291; [1947] 2 D.L.R. 248 (S.C.C.), appld. [para. 80].

Re Mailman Estate, [1941] S.C.R. 368; [1941] 3 D.L.R. 449 (S.C.C.), appld. [para. 80].

Public Trustee v. Skoretz, [1973] 2 W.W.R. 638 (B.C.S.C.), refd to. [para. 88].

Statutes Noticed:

Evidence Act, R.S.N.S. 1967, c. 94, sect. 42 [para. 78].

Counsel:

Appellants appeared personally;

Eric B. Durnford, for the respondents.

This case was heard on February 2, 1978, at Halifax, Nova Scotia, before MacKEIGAN, C.J.N.S., COFFIN and MACDONALD, JJ.A., of the Nova Scotia Supreme Court, Appeal Division.

On March 21, 1978, MACDONALD, J.A., delivered the following judgment for the Appeal Division: