Bollivar v. Hirtle Estate, (1989) 93 N.S.R.(2d) 279 (ProbCt)

• Court: Probate Court of Nova Scotia (Canada)
• Case Date: June 13, 1989
• Jurisdiction: Nova Scotia
• Citations: (1989), 93 N.S.R.(2d) 279 (ProbCt)

Bollivar v. Hirtle Estate (1989), 93 N.S.R.(2d) 279 (ProbCt);

              242 A.P.R. 279

MLB headnote and full text

In The Matter Of The Estate of Max William Hirtle, late of Dayspring, in the County of Lunenburg and Province of Nova Scotia, Deceased

(File No. 10,161)

Indexed As: Bollivar v. Hirtle Estate

Nova Scotia Probate Court

Freeman, J.C.C.

July 25, 1989.

Summary:

A former housekeeper who worked without compensation for six years for Hirtle in anticipation of receiving his estate brought an action for compensation when excluded from his will.

The Nova Scotia Probate Court awarded compensation on the basis of unjust enrichment. The court exercised its discretion under s. 2A of the Statute of Limitations to disallow the estate's defence based on the expiration of the limitation period.

Contracts - Topic 3666

Performance or breach - Repudiation - Acceptance of - What constitutes - Bollivar contracted to care for Hirtle for the rest of his life in exchange for receiving his estate upon his death - Bollivar left Hirtle after six years - Hirtle revoked his will leaving his estate to Bollivar - The Nova Scotia Probate Court held that Bollivar repudiated the contract and Hirtle accepted the repudiation by revoking the will - The court stated that a reasonable person in Bollivar's position would have known her repudiation had been accepted within a reasonable period following her departure (i.e., no more than one year) - See paragraphs 20 to 21.

Contracts - Topic 4106

Remedies for breach - Specific performance - When available - The plaintiff repudiated a contract; the defendant accepted the repudiation - The Nova Scotia Probate Court held that specific performance was not available to the plaintiff - See paragraph 23.

Contracts - Topic 8005

Statute of Frauds - Part performance - General - Bollivar and Hirtle had an unwritten agreement that if Bollivar cared for Hirtle for the rest of his life, then Hirtle would leave his estate to Bollivar - Hirtle's will left everything to Bollivar - Bollivar repudiated the agreement before Hirtle died and Hirtle revoked the will - The Nova Scotia Probate Court held that the agreement was an enforceable contract which complied with the Statute of Frauds - The will constituted a written memorandum under s. 6 of the Statute and Bollivar's six years of service was unequivocally referrable to the contract and in part performance of it - See paragraphs 10 to 14.

Contracts - Topic 8025

Statute of Frauds - Memorandum - Sufficiency of - [See Contracts - Topic 8005 above].

Limitation of Actions - Topic 2125

Actions in contract - Actions for price of services or work - When time begins to run - Bollivar contracted to care for Hirtle for the rest of his life in exchange for receiving his estate upon his death - Bollivar repudiated the contract by leaving Hirtle in 1979 -Hirtle accepted the repudiation by revoking his will that left everything to Bollivar - The Nova Scotia Probate Court held that a reasonable person in Bollivar's position would have known her repudiation had been accepted within a reasonable time (no more than one year) - The court held that the six year limitation period began to run in 1980.

Limitation of Actions - Topic 9401

Bars - Disallowance of defence - General - In 1973 Bollivar contracted to care for Hirtle for the rest of his life in exchange for receiving his estate upon his death - Bollivar repudiated the contract in 1979 - Hirtle revoked his will - Hirtle died in 1988 - Bollivar commenced an action in 1988 for compensation for her six years of service - The limitation period expired in 1986 - The Nova Scotia Probate Court exercised its discretion under s. 2A of the Statute of Limitations to disallow a defence based on the limitation period and allowed the action to proceed.

Restitution - Topic 62

Unjust enrichment - What constitutes - Bollivar contracted to care for Hirtle for the rest of his life in exchange for receiving his estate upon his death - Bollivar repudiated the contract in 1979, after performing services for six years without compensation - The repudiated contract did not provide for an early termination of services - The Nova Scotia Probate Court held that Bollivar had no claim for compensation in contract or on a quantum meruit basis, but was entitled to compensation on the basis of unjust enrichment.

Restitution - Topic 2505

Benefit acquired at defendant's request - Recovery based on quantum meruit - Work or services performed - [See Restitution - Topic 62 above].

Cases Noticed:

Johnson v. Nova Scotia Trust Co. et al. (1973), 6 N.S.R.(2d) 88, refd to. [para. 10].

Deglman v. Guaranty Trust, [1954] 3 D.L.R. 785, folld. [para. 13].

Appleby v. Myers (1867), L.R. 2 C.P. 651, refd to. [para. 19].

Nicholson v. Lyle Estate (1974), 10 N.S.R.(2d) 78; 2 A.P.R. 78, refd to. [para. 23].

Christy v. Row (1808), 1 Taunt. 300, refd to. [para. 23].

Sumpter v. Hedges, [1898] 1 Q.B. 673, refd to. [para. 23].

Cutter v. Powell (1795), 6 Term. Rep. 20, refd to. [para. 24].

Parker v. Parker (1973), 5 N.S.R.(2d) 725, refd to. [para. 29].

Velcoff v. Nova Scotia (1986), 73 N.S.R.(2d) 41; 176 A.P.R. 41, refd to. [para. 31].

Sawh v. Petrie (1986), 76 N.S.R.(2d) 223; 189 A.P.R. 223, refd to. [para. 31].

Statutes Noticed:

Limitation of Actions Act - see Statute of Limitations.

Statute of Frauds, R.S.N.S. 1967, c. 290, sect. 6 [para. 10].

Statute of Limitations, R.S.N.S. 1967, c. 168, sect. 2A [para. 30].

Authors and Works Noticed:

Williams on Wills (3rd Ed.), p. 1 ff [para. 8].

Counsel:

C. Richard Coughlan, for the Estate of Max William Hirtle;

Edmund R. Saunders, for Olive Victoria Bollivar.

This action was heard on June 13, 1989, before Freeman, J.C.C., of the Nova Scotia Probate Court, who delivered the following judgment on July 25, 1989.