Brown Estate v. Bon et al., (2003) 263 N.B.R.(2d) 287 (TD)

• Judge: Glennie, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: January 06, 2003
• Jurisdiction: New Brunswick
• Citations: (2003), 263 N.B.R.(2d) 287 (TD);2003 NBQB 236

Brown Estate v. Bon (2003), 263 N.B.R.(2d) 287 (TD);

    263 R.N.-B.(2e) 287; 689 A.P.R. 287

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2003] N.B.R.(2d) TBEd. JN.031

Brenda Ruth McNee and Sara Ruth Brown Crowder, in their capacity as Co-Executrices and Co-Trustees of the Estate of Ruth Wyatt Brown (applicants) v. Pamela Elizabeth Bon, Richard Alan Brown, Jonathan Charles Brown, Rebecca Ruth Brown, Brenda Ruth McNee (in her own right), Sara Ruth Brown Crowder (in her own right), Joshua Mark Brown, Frederick Charles Brown, Jr., Wyatt Frederick Brown (an infant) and Denyse F. Smart (respondents)

(S/M/93/02; 2003 NBQB 236)

Indexed As: Brown Estate v. Bon et al.

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Saint John

Glennie, J.

June 13, 2003.

Summary:

Brown's will left her property to be equal­ly divided between her eight children and one grandchild. One of the witnesses to the execution of the will was the spouse of a beneficiary (a daughter). Section 12(1) of the Wills Act rendered the bequest to the daugh­ter void. The co-executors of the estate applied for directions as to the disposition of the daughter's interest in the estate. They also claimed the costs of the application, and the grandchild's representation by a litigation guardian, from the lawyer who drafted the will, on the ground of incomplete instruc­tions. The lawyer advised against a benefi­ciary witnessing the will, but failed to advise that if the spouse of a beneficiary witnessed the will the beneficiary's bequest was also void. The lawyer submitted, inter alia, that s. 12(1) violated equality rights under s. 15(1) of the Charter of Rights and Freedoms.

The New Brunswick Court of Queen's Bench, Trial Division, held that s. 12(1) did not violate s. 15(1) of the Charter because, inter alia, it did not have the effect of de­meaning human dignity. In any event, the lawyer lacked standing to challenge the constitutional validity of s. 12(1) on the daughter's behalf. The curative provisions of s. 35.1 of the Wills Act could not apply where s. 35.1 commenced one month after Brown died and the transitional provisions clearly limited its application to persons dying after s. 35.1 commenced. The daugh­ter's one-ninth share of the estate was to be distributed on the basis of an intestacy. All eight children (including the daughter) equal­ly shared the one-ninth interest. Whether the lawyer was ultimately liable for the costs of the application and the litigation guardian, which were paid out of the estate on a solici­tor-client basis, was best left for a possible subsequent action against the lawyer.

Civil Rights - Topic 5678.4

Equality and protection of the law - Par­ticular cases - Wills legislation - Section 12(1) of the Wills Act voided a bequest to a beneficiary where the beneficiary's spouse witnessed the will - The testator's will equally divided her estate between her eight children and one grandchild - The lawyer drafting the will advised against a beneficiary witnessing the will, but failed to advise on the application of s. 12(1) - The spouse of one of the testator's daugh­ters witnessed the will, thereby voiding the bequest to her - The co-executors applied for a determination of how the daughter's one-ninth share was to be distributed and submitted that the lawyer should be per­sonally liable for the costs of the ap­plica­tion and the litigation guardian for the grandchild - The lawyer (not the daughter) submitted that s. 12(1) violated s. 15(1) of the Charter - The New Brunswick Court of Queen's Bench, Trial Division, held that s. 12(1) did not violate s. 15(1) of the Char­ter because, inter alia, it did not have the effect of demeaning human dignity - In any event, s. 12(1) did not infringe the lawyer's equality rights and the lawyer had no standing to argue that it violated the daughter's equality rights - See paragraphs 42 to 90.

Wills - Topic 1558

Preparation and execution - Attestation - By interested witness - [See Civil Rights - Topic 5678.4 ].

Wills - Topic 1573

Preparation and execution - Formal validity - Curing of irregularity - Section 35.1 of the Wills Act provided that where a docu­ment expressed the testator's intentions, the court had a discretion to validate the docu­ment notwithstanding a failure to comply with the formal requirements of the Act - Section 35.1 came into force on April 1, 2001 - The transitional provisions of the amending Act clearly provided that s. 35.1 applied only to the will of a person who died after the commencement of s. 35.1 (April 1, 2001) - Where a testator died one month before s. 35.1 commenced, the New Brunswick Court of Queen's Bench, Trial Division, held that it could not apply to cure any defects in the formal requirements of the Act - The court questioned, but did not decide, whether s. 35.1 could be in­voked to cure the voiding of a gift under s. 12(1) of the Act - See paragraphs 91 to 115.

Wills - Topic 4046

Failure of gifts - Lapse - Devolution of lapsed gift - A will equally divided the testator's estate amongst her eight children and one grandchild - One of the witnesses to the execution of the will was the spouse of a beneficiary (a daughter) - Section 12(1) of the Wills Act rendered the be­quest to the daughter void - The co-execu­tors of the estate applied for directions as to the disposition of the daughter's interest in the estate - The New Brunswick Court of Queen's Bench, Trial Division, held that the daughter's one-ninth share of the estate was to be divided as on an intestacy - Accordingly, all eight children, including the daughter, equally shared the one-ninth share - See paragraphs 118 to 125.

Cases Noticed:

Joyce Will Trust, Re, [1959] 3 All E.R. 278 (C.A.), refd to. [para. 22].

Kyte Estate, Re (1998), 169 N.S.R.(2d) 192; 508 A.P.R. 192 (Prob. Ct.), refd to. [para. 24].

Hammond v. Hammond, 1992 CarswellBC 288, refd to. [para. 32].

Bird, Re, 2002 CarswellBC 2744, refd to. [para. 34].

Law v. Minister of Employment and Im­migration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 54].

Miron and Valliere v. Trudel et al., [1995] 2 S.C.R. 418; 181 N.R. 253; 81 O.A.C. 253, refd to. [para. 57].

Walsh v. Bona (2002), 297 N.R. 203; 210 N.S.R.(2d) 273; 659 A.P.R. 273; 2002 CarswellNS 511 (S.C.C.), refd to. [para. 58].

Grigg v. Berg Estate et al. (2000), 27 B.C.T.C. 360; 2000 CarswellBC 47 (S.C.), refd to. [para. 59].

Bauman et al. v. Nova Scotia (Attorney General) (2001), 192 N.S.R.(2d) 236; 599 A.P.R. 236; 2001 CarswellNS 117 (C.A.), refd to. [para. 73].

Gosselin v. Québec (Procureur général) (2002), 298 N.R. 1 (S.C.C.), refd to. [para. 84].

Stinson Estate v. British Columbia et al. (1999), 133 B.C.A.C. 15; 217 W.A.C. 15; 1999 CarswellBC 2832 (C.A.), refd to. [para. 86].

Warren Estate, Re (1993), 112 Sask.R. 62; 1993 CarswellSask 514 (Q.B.), refd to. [para. 97].

Walmsley Estate, Re (2001), 202 Sask.R. 311; 2001 CarswellSask 163 (Q.B.), refd to. [para. 102].

Balfour Estate, Re (1990), 85 Sask.R. 183 (Q.B.), refd to. [para. 103].

Ratzlaff Estate, Re (2001), 206 Sask.R. 124 (Q.B.), refd to. [para. 106].

Thompson et al. v. Zilkie, [1951] 1 D.L.R. 31 (Sask. C.A.), refd to. [para. 108].

Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, [1977] 1 S.C.R. 271; 7 N.R. 401, refd to. [para. 109].

MacKenzie v. Commissioner of Teachers' Pensions (B.C.) (1992), 15 B.C.A.C. 69; 27 W.A.C. 69; 94 D.L.R.(4th) 532 (C.A.), refd to. [para. 111].

Steeden Estate, Re (1992), 106 Sask.R. 161 (Surr. Ct.), affd. (1993), 109 Sask.R. 318; 42 W.A.C. 318 (C.A.), dist. [para. 115].

Griffith, Re, [1951] 1 D.L.R. 551 (N.B.C.A.), refd to. [para. 119].

Watson Estate, Re, [1927] 4 D.L.R. 626 (Ont. S.C.), refd to. [para. 120].

Pearson Estate, Re (1989), 81 Sask.R. 221 (Q.B.), refd to. [para. 120].

Jones v. Public Trustee (B.C.), [1982] 5 W.W.R. 543 (B.C.S.C.), refd to. [para. 120].

McKay Estate, Re (1861), 5 N.S.R. 131 (C.A.), refd to. [para. 120].

Statutes Noticed:

Wills Act, R.S.N.B. 1973, c. W-9, sect. 12 [para. 21]; sect. 35.1 [para. 92].

Wills Act, An Act to Amend, S.N.B. 1997, c. 7, sect. 7 [para. 93]; sect. 8 [para. 113].

Authors and Works Noticed:

British Columbia, Law Reform Commis­sion, Report on the Making and Revoca­tion of Wills (1981), generally [paras. 27, 29, 30].

Driedger, Elmer A., Construction of Stat­utes (3rd Ed. 1994), p. 513 [para. 110].

Feeney, Thomas G., Canadian Law of Wills (4th Ed. 2000), §§ 4.33 [para. 38]; 4.41, 4.42 [para. 37].

Counsel:

Stephen J. Hutchison, for the applicants;

G. Melvin Turner, Q.C., for the respon­dent, Wyatt Frederick Brown;

Ronald J. Ashfield, Q.C., for the respon­dent, Denyse F. Smart;

Gaétan Migneault, for the intervenor, At­torney General of New Brunswick.

This application was heard on January 6, 2003, before Glennie, J., of the New Bruns­wick Court of Queen's Bench, Trial Divi­sion, Judicial District of Saint John, who delivered the following judgment on June 13, 2003.