O'Connell Estate, Re, (1980) 44 N.S.R.(2d) 181 (ProbCt)

Judge:McLellan, J.
Court:Nova Scotia Probate Court
Case Date:November 14, 1980
Jurisdiction:Nova Scotia
Citations:(1980), 44 N.S.R.(2d) 181 (ProbCt)
 
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O'Connell Estate, Re (1980), 44 N.S.R.(2d) 181 (ProbCt);

    83 A.P.R. 181

MLB headnote and full text

Re O'Connell's Estate

(8183)

Indexed As: O'Connell Estate, Re

Nova Scotia Probate Court

County of Kings

McLellan, J.

November 14, 1980.

Summary:

The deceased's common law wife claimed $72,000.00 against his estate for personal services rendered to the deceased. The sum was alternately claimed under a breach of contract or quantum meruit. The couple pooled their resources and purchased a house in joint tenancy. The couple executed mutual wills; however, upon the death of the deceased, it was discovered that he had left his entire estate to his stepdaughter.

The Nova Scotia Probate Court allowed the action and implied an agreement that the testator undertook to devise his one-half interest in the home to the claimant. The court held that the claimant was not entitled to judgment on a quantum meruit or unjust enrichment basis, because, although the deceased would have been estopped from denying the fact that he had not changed his will and although the deceased was unjustly enriched, there was no corroborative evidence as required by s. 42 of the Evidence Act.

Estoppel - Topic 1022

Estoppel in pais (by conduct) - Estoppel by agreement - What constitutes - The testator and his common law wife made mutual wills - After a separation the wife asked the deceased if he had changed his will and upon his assurance that he had not, the wife looked after him until his death - The deceased had changed his will leaving his entire estate to his stepdaughter - The Nova Scotia Probate Court held that there was an estoppel by agreement and because the deceased would be estopped from denying the fact that he had not changed his will, his executrix was in no better position - See paragraph 21.

Executors and Administrators - Topic 5700

Actions by and against representatives - Evidence - Claim by or against estate - Corroboration - The Nova Scotia Probate Court held that the claimant, the common law wife of the deceased, could not succeed in a claim against the deceased's estate on the basis of estoppel, quantum meruit, or unjust enrichment, because there was no corroborative evidence as required by s. 42 of the Evidence Act - See paragraphs 22, 23 and 28.

Restitution - Topic 62

Unjust enrichment - What constitutes - The deceased's common law wife claimed against his estate for personal services rendered to the deceased - The couple pooled their resources and purchased a house in joint tenancy - The couple executed mutual wills, but upon the death of the deceased, it was discovered that he had left his entire estate to his stepdaughter - The Nova Scotia Probate Court held that the deceased was unjustly enriched by the claimant - See paragraph 24.

Restitution - Topic 2501

Benefit acquired at defendant's request - Recovery based on quantum meruit - The deceased's common law wife claimed against his estate for personal services rendered to the deceased - The Nova Scotia Probate Court held that the parties had entered into a relationship for their mutual benefit and enjoyment and payment for services was never considered between them - See paragraph 23.

Trusts - Topic 2146

Resulting trusts - Intention of settlor - Circumstances where intention may be inferred or presumed - The deceased's common law wife claimed against his estate for personal services rendered to the deceased - The couple pooled their resources and purchased a house in joint tenancy - The couple executed mutual wills, but upon the death of the deceased, it was discovered that he left his entire estate to his stepdaughter - The Nova Scotia Probate Court implied an agreement that the testator undertook to devise his one-half interest in the home to the claimant - See paragraphs 28 and 29.

Wills - Topic 92

Testamentary instruments - Mutual wills - Effect of - The Nova Scotia Probate Court stated that the mere making of mutual wills does not permanently change the rights and obligations of the makers - Because a will, by its very nature, is always revocable, it is only when one of the makers dies, without having altered his or her mutual will, that the rights of the survivor to alter his or her mutual will may be compromised - See paragraph 19.

Cases Noticed:

Gray v. Perpetual Trustee Co. Ltd., [1928] A.C. 391; [1928] All E.R. Rep. 758, refd to. [para. 19].

Spears v. Levy (1974), 9 N.S.R.(2d) 340, consd. [para. 24].

Thompson v. Coulter (1903), 34 S.C.R. 261; 3 O.W.R. 82, consd. [para. 25].

McDonald v. McDonald (1903), 33 S.C.R. 145, consd. [para. 25].

Re MacDonald (1924), 56 N.S.R. 451 (C.A.), refd to. [para. 25].

Elgin v. Stubbs, [1928] 2 D.L.R. 838; 62 O.L.R. 128, refd to. [para. 25].

Statutes Noticed:

Evidence Act, R.S.N.S. 1967, c. 94, sect. 42 [paras. 22 to 29].

Probate Act, R.S.N.S. 1967, c. 238, sect. 154(1) [para. 1].

Testator's Family Maintenance Act, R.S.N.S. 1967, c. 303 [para. 18].

Authors and Works Noticed:

Cross on Evidence (3rd Ed.), pp. 284 and 285 [para. 21].

Counsel:

William J. Dyer, for the claimant;

W. Bruce Gillis, for the executrix.

This case was heard before McLELLAN, J., of the Nova Scotia Probate Court, County of Kings.

The judgment of McLELLAN, J., was delivered on November 14, 1980.

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