Blunt v. Blunt Estate, (1989) 56 Man.R.(2d) 306 (QB)

• Judge: Coleman, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: February 08, 1989
• Jurisdiction: Manitoba
• Citations: (1989), 56 Man.R.(2d) 306 (QB)

Blunt v. Blunt Estate (1989), 56 Man.R.(2d) 306 (QB)

MLB headnote and full text

Mary Alice Elizabeth Blunt (applicant) v. Archibald Tait Griffith, as executor of the Estate of Frank Leonard Blunt (respondent)

(Suit No. 31/87)

Indexed As: Blunt v. Blunt Estate

Manitoba Court of Queen's Bench

Minnedosa Centre

Coleman, J.

February 8, 1989.

Summary:

A widow elected to take under the Dower Act and not under her late husband's will. The widow applied under s. 28 of the Act for payment from her husband's estate of the amount to which she was entitled.

The Manitoba Court of Queen's Bench allowed the widow's application.

Executors and Administrators - Topic 6303

Accounts and passing of accounts - Practice - Persons who may challenge accounts - A widow elected to take under the Dower Act her one-half share of her deceased husband's estate - The Manitoba Court of Queen's Bench held that the widow could challenge the husband's executor's accounts, at the passing of accounts - See paragraph 44.

Real Property - Topic 2016

Dower or rights of wife - Interest on value of wife's dower - A wife elected to take under the Dower Act her one-half share of her deceased husband's net estate - The election was not made until about two years after the husband's death - The Manitoba Court of Queen's Bench held that the widow was entitled to interest on her share from the date of her election to the date of payment - The court held that the rate of interest should be 8 1/2% - See paragraphs 35 to 39.

Real Property - Topic 2028

Dower or rights of wife - Valuation of dower interest - Husband's net estate - What constitutes - A widow elected to take under the Dower Act her one-half share of her deceased husband's net estate - The Manitoba Court of Queen's Bench held that in calculating the husband's net estate, assets owned jointly by the husband and his widow, which by right of survivorship became the widow's absolute property on the husband's death, did not form part of his "net real and personal property" within the meaning of s. 1 - The court held that a mortgage, a joint bank account, a joint Canada Savings Bond and a joint term deposit were accordingly not to be considered in calculating the widow's dower interest - The court held, however, that a life annuity purchased by the husband for the wife, who continued to receive monthly payments, was a gift from the husband to the widow owned by her at the time of his death for her own use and was conveyed to her as a gift - Accordingly, the annuity could be considered in calculating her dower interest - See paragraphs 13 to 32.

Real Property - Topic 2029

Dower or rights of wife - Valuation of dower interest - Income earned on estate assets - A wife elected to take under the Dower Act her one-half share of her deceased husband's net estate - At issue was whether the widow was entitled to any portion of the income earned on the assets of the estate still in the hands of the executor - The Manitoba Court of Queen's Bench held that the widow was not so entitled - See paragraphs 33 to 34.

Real Property - Topic 2245

Dower or rights of wife - Recovery of dower - Payment - Time for - A widow elected to take under the Dower Act her one-half share of her deceased husband's net estate -The husband died in 1985 - The widow's election was not made until about two years later - Pursuant to the discretion given him in the will the executor retained certain real property in the hope it would increase in value - In 1989 the widow was 88 years old and the estate had still not been wound up - The Manitoba Court of Queen's Bench held that the estate should be wound up quickly and the widow's dower interest paid to her immediately - See paragraphs 40 to 42.

Cases Noticed:

In Re Lenius (1922), 32 Man. R. 558 (C.A.), refd to. [para. 21].

Blowers Estate, Re; Menrad v. Blowers et al. (1982), 16 Man.R.(2d) 288; 28 R.F.L.(2d) 289, refd to. [para. 21].

Johnson v. Johnson, [1980] 5 W.W.R. 717; 3 Sask.R. 75 (Q.B.), refd to. [para. 26].

Re Bergen's Estate (1983), 24 Man.R.(2d) 249, appld. [para. 29, Appendix].

Morgan v. Altman (1961), 34 W.W.R.(N.S.) 452, appld. [para. 34, Appendix].

Canada Permanent Trust v. Kerrie et al., [1977] 4 W.W.R. 555, appld. [para. 34, Appendix].

Re Kotowski Estate, [1987] 6 W.W.R. 685 (Man. C.A.), refd to. [para. 34].

Re Williams Estate, [1983] 4 W.W.R. 160; 21 Man.R.(2d) 157, refd to. [para. 36, Appendix].

Barrett v. Harper, [1907] Eastern Law Reporter 89, refd to. [Appendix].

In Re Lawther Estate, [1947] 1 W.W.R. 577, refd to. [Appendix].

Brown v. Brown (1953), 32 M.P.R. 29 (Nfld. S.C.), refd to. [Appendix].

Re Reid (1921), 50 O.L.R. 595 (C.A.), refd to. [Appendix].

Re Fenton Estate (1978), 26 N.S.R.(2d) 662; 40 A.P.R. 662, refd to. [Appendix].

Klemkowich v. Klemkowich (1955), 14 W.W.R.(N.S.) 418 (Man. Q.B.), refd to. [Appendix].

Plater v. Brealey, [1938] O.W.N. 365, affd. [1939] O.W.N. 203 (C.A.), refd to. [Appendix].

Canada Trust Co. v. Lecky, [1978] 6 W.W.R. 765, refd to. [Appendix].

Statutes Noticed:

Dower Act, R.S.M. 1970, c. D-100; C.C.S.M., c. D-100, sect. 1 [paras. 11, 17, 25]; sect. 15(1) [paras. 5-6, 10, 14-15, 17, 19, 32, 43]; sect. 15(2) [para. 43]; sect. 21 [para. 35]; sect. 28 [para. 1].

Judgment Interest and Discount Act, S.M. 1986-87, c. 39; C.C.S.M., c. J-8, sect. 2(2) [para. 39].

Authors and Works Noticed:

Baxter, Ian, The Law of Banking (3rd Ed. 1981), pp. 43-47 [Appendix].

Brown, Ray Andrews, Law of Personal Property (3rd Ed. 1975), pp. 181-188 [Appendix].

Hughes, A.D., Reform of the Dower Act, Rights of Widows (1979), 9 Manitoba Law Journal 393 [para. 19].

Manitoba Law Reform Commission, Report on the Dower Act (1984) [para. 20].

Counsel:

G.N. Bass, for the applicant;

D.A. Bedford, for the respondent.

This application was heard before Coleman, J., of the Manitoba Court of Queen's Bench, whose decision was delivered on February 8, 1989.