Brown Estate, Re, (1995) 139 N.S.R.(2d) 252 (SC)

• Judge: Stewart, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: September 27, 1994
• Jurisdiction: Nova Scotia
• Citations: (1995), 139 N.S.R.(2d) 252 (SC)

Brown Estate, Re (1995), 139 N.S.R.(2d) 252 (SC);

  397 A.P.R. 252

MLB headnote and full text

Sharon MacDonald (plaintiff) v. Estate of Philip Brown (defendant)

(S.H. No. 107163)

Indexed As: Brown Estate, Re

Nova Scotia Supreme Court

Stewart, J.

January 20, 1995.

Summary:

One of the residuary beneficiaries of an estate applied for an interpretation of certain bequests contained in the will.

The Nova Scotia Supreme Court inter­preted the will accordingly.

Wills - Topic 8018

Construction - Conditional gifts - General principles - Public policy - An unmarried testator's favourite relative was his niece's son - He left his niece part of the residue of his estate - By codicil the niece received income for life from trusts "until she becomes widowed or divorced from her present husband" at which time she would receive the capital of the fund - There was a gift over to the niece's son "if my niece dies without becoming widowed or divorced" - The Nova Scotia Supreme Court held that the provisions were not void as being contrary to public policy - The testator did not attempt to use his property to disrupt a marriage, but to protect and support his niece and her son, who was his favourite relative - See para­graphs 10 to 23.

Wills - Topic 8544

Evidence - Extrinsic evidence - Of sur­rounding circumstances to resolve ambi­guity in will - An unmarried testator made bequests to his niece and to her young son, his favourite relative - When the niece experienced financial difficulties, the testa­tor lent the niece money and he also changed the bequests in several codicils - The Nova Scotia Supreme Court, finding ambiguity in what the testator intended, held that it was entitled to determine the meaning in the light of the circumstances surrounding the making of the will - The court interpreted the bequests in accord­ance with the testator's intention to be protective and supportive of his niece and fair and equitable to his other relatives, with the exception of his favourite relative, his niece's son - See paragraphs 25 to 35.

Cases Noticed:

Nurse, Re (1921), 20 O.W.N. 428 (Ont. S.C.), refd to. [para. 11].

Blanchard Estate, Re - see Quinn v. Eastern Trust Co.

Quinn v. Eastern Trust Co. (1963), 48 M.P.R. 134; 39 D.L.R.(2d) 743 (P.E.I.C.A.); affing. (1962), 34 D.L.R.(2d) 363 (P.E.I.S.C.), refd to. [para. 11].

Eastern Trust Co. v. McTague - see Quinn v. Eastern Trust Co.

Fairfoull, Re: Canada Permanent Trust Co. v. Bullman, [1974] 41 D.L.R.(3d) 152, affd. [1974] 6 W.W.R. 471; 18 R.F.L. 165 (B.C.S.C.), refd to. [para. 11].

McBride, Re (1980), 27 O.R.(2d) 513; 107 D.L.R.(3d) 233; 6 E.T.R. 181 (Ont. H.C.), refd to. [para. 11].

Brown v. Peck (1758), 1 Eden 140; 28 E.R. 637, refd to. [para. 11].

Wilkinson v. Wilkinson (1871), L.R. 12 Eq. 604, refd to. [para. 11].

Moore, Re: Trafford v. Maconochie (1888), 39 Ch. D. 116 (C.A.), refd to. [para. 11].

Lovell, Re: Sparks v. Southall, [1920] 1 Ch. 122, refd to. [para. 11].

Thompson, Re: Lloyds Bank Ltd. v. George, [1939] 1 All E.R. 681 (Ch. D.), refd to. [para. 11].

Caborne, Re: Hodge v. Smith, [1943] 1 Ch. 224; [1943] 2 All E.R. 7, refd to. [para. 11].

Johnson's Will Trusts, Re: National Pro­vincial Bank Ltd. v. Jeffrey et al., [1967] 1 Ch. 387; [1967] 1 All E.R. 553, refd to. [para. 11].

Wacker v. Bullock, [1935] N.Z.L.R. 828 (New Zealand S.C.), refd to. [para. 11].

Ramsay, Re, [1948] V.L.R. 347 (Aus. S.C.), refd to. [para. 11].

Quinn v. Eastern Trust Co. (1962), 34 D.L.R.(2d) 363 (P.E.I.S.C.), refd to. [para. 11].

Gerbing v. Grigg et al. (1975), 337 N.E.(2d) 29 (I.S.C.), refd to. [para. 11].

Goodwin, Re (1969), 3 D.L.R.(3d) 281 (Alta. T.D.), refd to. [para. 11].

Middlebro v. Ryan et al., [1925] S.C.R. 10; [1925] 1 D.L.R. 589, refd to. [para. 11].

Kerr v. Clinton (Baroness) (1869), L.R. 8 Eq. 462, dist. [para. 34].

Statutes Noticed:

Testators' Family Maintenance Act, R.S.N.S. 1989, c. 465, generally [para. 22].

Authors and Works Noticed:

Feeney, Thomas G., Canadian Law of Wills (3rd Ed. 1987), vol. 2, pp. 7 [para. 32]; 18 [para. 28].

Scott and Fratcher, The Law of Trusts (4th Ed. 1987), p. 294 [para. 12].

Counsel:

Ronald Burton, for the plaintiff;

Linda Lee Oland, for the litigation guard­ian, Trevor MacDonald;

John Arnold, for the defendant.

This case was heard at Halifax, Nova Scotia, on September 27, 1994, with confir­mation of notice on October 5, 1994, before Stewart, J., of the Nova Scotia Supreme Court, who delivered the following judgment on January 20, 1995.