Chisholm Estate, Re, (1996) 155 N.S.R.(2d) 36 (ProbCt)

• Judge: MacLellan, J.
• Court: Probate Court of Nova Scotia (Canada)
• Case Date: September 10, 1996
• Jurisdiction: Nova Scotia
• Citations: (1996), 155 N.S.R.(2d) 36 (ProbCt)

Chisholm Estate, Re  (1996), 155 N.S.R.(2d) 36 (ProbCt);

    457 A.P.R. 36

MLB headnote and full text

In The Matter Of The Petition of Janet Asselstine, Administratix of the estate of John Angus Chisholm, for partition or sale of lands owned in his lifetime by the deceased;

And In The Matter Of The Probate Act, R.S.N.S. 1989, c. 359.

(Probate No. 1161)

Indexed As: Chisholm Estate, Re

Nova Scotia Probate Court

MacLellan, J.

October 11, 1996.

Summary:

An intestate died leaving his brothers and sisters as his heirs. Four of the siblings were deceased but had children surviving them. A nephew and a niece were also deceased but had children surviving them. At issue was whether the grand-nieces and grand-nep­hews were entitled by representation to inherit part of the estate pursuant to s. 8 of the Intestate Succession Act.

The Nova Scotia Probate Court interpreted s. 8 of the Act to mean that only the children of brothers and sisters could take the share of an estate intended for their parent. Children of predeceased nieces and nephews were not entitled to a share in the estate.

Devolution of Estates - Topic 486

Devolution - General - Brothers and sisters - Descendants of - Persons entitled to take - An intestate died leaving his brothers and sisters as his heirs - Four of the siblings were deceased but had children surviving them - A nephew and a niece were also deceased but had children surviving them - At issue was whether the grand-nieces and grand-nep­hews were entitled to inherit by repre­sen­tation part of the estate pursuant to s. 8 of the Intestate Succession Act - The Nova Scotia Probate Court interpreted s. 8 of the Act to mean that only the children of brothers and sisters could take the share of an estate intended for their parent - Children of predeceased nieces and nep­hews were not entitled to the share intended for their parent - See paragraphs 8 to 19.

Cases Noticed:

Matthews Estate, Re (1992), 126 A.R. 287; 1 Alta. L.R.(3d) 198 (Q.B.), folld. [para. 10].

Minor, Re (1945), 61 B.C.R. 401 (S.C.), folld. [para. 14].

Harmon v. Furber, [1934] 2 W.W.R. 182 (Man. C.A.), refd to. [para. 15].

Budd Estate, Re - see Harmon v. Furber.

McKay Estate, Re (1927), 39 B.C.R. 51 (S.C.), not folld. [para. 16].

Carter v. Patrick (1935), 49 B.C.R. 411 (S.C.), not folld. [para. 16].

McIver Estate, Re (1941), 57 B.C.R. 139 (S.C.), not folld. [para. 16].

Statutes Noticed:

Intestate Succession Act, R.S.N.S. 1989, c. 236, sect. 8 [para. 6].

Counsel:

Donald Macdonald, for Janet Asselstine, Administratrix of the Chisholm Estate;

Duncan Chisholm, for Marion Allman.

This matter was heard in Antigonish, Nova Scotia, on September 10, 1996, before MacLellan, J., of the Nova Scotia Probate Court, who rendered the following judgment on October 11, 1996.