O'Connell Estate, Re, (1981) 45 N.S.R.(2d) 336 (CA)

• Judge: MacKeigan, C.J.N.S., Cooper and Hart, JJ.A.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: May 06, 1981
• Jurisdiction: Nova Scotia
• Citations: (1981), 45 N.S.R.(2d) 336 (CA)

O'Connell Estate, Re (1981), 45 N.S.R.(2d) 336 (CA);

    86 A.P.R. 336

MLB headnote and full text

Re O'Connell Estate

Wadden v. Wahay

(S.C.A. 00733)

Indexed As: O'Connell Estate, Re

Nova Scotia Supreme Court

Appeal Division

MacKeigan, C.J.N.S., Cooper and Hart, JJ.A.

May 6, 1981.

Summary:

This case arose out of a claim by a woman against a man's estate. The man agreed to devise to the woman a one-half interest in a home. In return the woman agreed to devise to the man her one-half interest in the same home. Both wills were made. The man made a subsequent will in violation of the agreement. The trial court held that the executrix of the man's estate was a trustee for the benefit of the woman of the man's one-half interest in the home - See 44 N.S.R.(2d) 181; 83 A.P.R. 181. The executrix appealed to the Nova Scotia Court of Appeal.

The Nova Scotia Court of Appeal dismissed the appeal.

Trusts - Topic 326

Creation of trust - Methods of creation - Agreement to devise - A man agreed to devise to a woman a one-half interest in a home - In return, the woman agreed to devise to the man her one-half interest in the same home - Both wills were made - The Nova Scotia Court of Appeal held that such an agreement created a trust in favour of the woman notwithstanding that the man made a subsequent will in violation of the agreement.

Cases Noticed:

Spears v. Levy (1974), 9 N.S.R.(2d) 340, refd to. [para. 13].

The Estate of Mary Heys, Walker and Another v. Gaskill and Others, [1914] p. 192, refd to. [para. 14].

Dufour v. Pereira, 1 Dick. 419, refd to. [para. 16].

Re Green, [1951] Ch. 148, refd to. [para. 16].

Statutes Noticed:

Evidence Act, R.S.N.S. 1967, c. 94, sect. 42 [para. 11].

Authors and Works Noticed:

Hargrave's Juridical Arguments, vol. ii, p. 272 [para. 16].

Bailey, The Law of Wills (6th Ed.), p. 66 [para. 16].

Counsel:

W. Bruce Gillis, for the appellant;

William J. Dyer, for the respondent Wahay.

This appeal was heard by MacKEIGAN, C.J.N.S., COOPER and HART, JJ.A., of the Appeal Division of the Nova Scotia Supreme Court at Halifax, Nova Scotia, on April 16, 1981.

The judgment of the Appeal Division was delivered by COOPER, J.A., on May 6, 1981.