Daniel v. Daniel, (1986) 41 Man.R.(2d) 66 (QB)

• Judge: Hirschfield, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: May 20, 1986
• Jurisdiction: Manitoba
• Citations: (1986), 41 Man.R.(2d) 66 (QB)

Daniel v. Daniel (1986), 41 Man.R.(2d) 66 (QB)

MLB headnote and full text

Ruby Eve Cecile Daniel, and Kelly Dawn Daniel, an infant by her next friend, Ruby Eve Cecile Daniel (applicants) v. Nancy Lorraine Daniel, as Executor of the Estate of George Edward Daniel, deceased (respondent)

(No. 3112/83)

Indexed As: Daniel v. Daniel

Manitoba Court of Queen's Bench

Hirschfield, J.

May 20, 1986.

Summary:

A testator died leaving his widow and a child from a previous marriage. The testator made his widow the sole beneficiary of his estate. The child applied under the Testator's Family Maintenance Act for a share in the deceased's estate.

The Manitoba Court of Queen's Bench held that the child was entitled to share in her late father's estate. The court ordered the widow to pay $7,500. out of the estate assets to the child.

Family Law - Topic 6635

Dependents' relief legislation - Per sons entitled to relief - Child - General - A testator died leaving his widow and a child from a previous marriage - The widow was the sole beneficiary under the will - The child applied under the Testator's Family Maintenance Act for a share in her father's estate - The Manitoba Court of Queen's Bench held that the child was entitled to share in her father's estate - The court stated that the child needed financial help and there was no reason to believe that the father would not have assisted her if he was alive - See paragraphs 27 to 34.

Family Law - Topic 6670

Dependents' relief legislation - Entitlement - Property subject to distribution - R.R.S.P's - A testator died leaving his widow and a child from a previous marriage - The widow was the sole beneficiary under the will - The child applied under the Testator's Family Maintenance Act for a share in her father's estate - The child alleged that R.R.S.P.'s naming the widow as beneficiary should be included in the value of the estate - The Manitoba Court of Queen's Bench held that the R.R.S.P.'s were not part of the estate - The court stated that the R.R.S.P.'s fell within the definition of plan under the Retirement Plan Beneficiaries Act and could be designated to a specific individual - See paragraphs 19 to 24.

Family Law - Topic 6692

Dependents' relief legislation - Considerations in making awards - Other statutes - Devolution of Estates Act - A testator died leaving his widow and a child from a previous marriage - The widow was the sole beneficiary under the will - The child applied under the Testator's Family Maintenance Act for a share in her father's estate - The widow alleged that because the gross value of the estate was less than $50,000.00 she should receive the entire estate pursuant to s. 6(1) of the Devolution of Estates Act - The Manitoba Court of Queen's Bench held that the Devolution of Estates Act does not apply where the deceased dies leaving a will - See paragraphs 25 and 26.

Family Law - Topic 6692

Dependents' relief legislation - Considerations in making awards - Other statutes - Dower Act - A testator died leaving his widow and a child from a previous marriage - The widow was the sole beneficiary under the will - The child applied under the Testator's Family Maintenance Act for a share in her father's estate - The child alleged that she should receive one half of the estate pursuant to s. 15 of the Dower Act - The Manitoba Court of Queen's Bench held that the Dower Act applies only to the widow of a testator and not to a child of the testator - See paragraph 27.

Family Law - Topic 6753

Dependents' relief legislation - Practice - Time for application - A testator died leaving his widow and a child from a previous marriage - The widow was the sole beneficiary under the will - The child applied under the Testator's Family Maintenance Act for a share in her father's estate - The widow alleged the application was out of time because the estate was already distributed - The Manitoba Court of Queen's Bench allowed the application - The court held that where there is a possibility of an application under the Testator's Family Maintenance Act, the executor is inhibited from distributing the assets of the estate for a period of six months - See paragraphs 14 to 18.

Cases Noticed:

Gillis v. Althous and Martin, [1976] 1 S.C.R. 353; [1975] 5 W.W.R. 547; 4 N.R. 36 (S.C.C.), appld. [para. 15].

Mazur v. Mazur, [1980] 3 W.W.R. 289; 3 Man.R.(2d) 67 (Man. C.A.), refd to. [para. 16].

Statutes Noticed:

Devolution of Estates Act, R.S.M. 1970, c. D-70; C.C.S.M., c. D-70, sect. 6(1) [para. 25].

Dower Act, R.S.M. 1970, c. D-100; C.C.S.M., c. D-100, sect. 15 [para. 27].

Retirement Plan Beneficiaries Act, S.M. 1976, c. 27; C.C.S.M., c. R-128 [paras. 19, 23]; sect. 1, sect. 2 [para. 19].

Testator's Family Maintenance Act, R.S.M. 1970, c. T-50; C.C.S.M., c. T-50 [para. 1]; sect. 3(1) [para. 29]; sect. 15 [paras. 14, 15].

Counsel:

J.D. Oliver, for the applicants;

D.A. Yanofsky, O.C., Q.C., for the respondent.

This case was heard before Hirschfield, J., of the Manitoba Court of Queen's Bench, who delivered the following judgment on May 20, 1986: