Davies v. Collins, 2011 NSCA 79

• Judge: Saunders, Farrar and Bryson, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: September 13, 2011
• Jurisdiction: Nova Scotia
• Citations: 2011 NSCA 79;(2011), 307 N.S.R.(2d) 288 (CA)

Davies v. Collins (2011), 307 N.S.R.(2d) 288 (CA);

    975 A.P.R. 288

MLB headnote and full text

Temp. Cite: [2011] N.S.R.(2d) TBEd. SE.023

Pamela Mary Davies (appellant) v. Jennifer Jaroda Collins (respondent)

(CA 342419; 2011 NSCA 79)

Indexed As: Davies v. Collins

Nova Scotia Court of Appeal

Saunders, Farrar and Bryson, JJ.A.

September 13, 2011.

Summary:

Davies was divorced from the plaintiff. His 1989 will was in Nova Scotia (N.S.). While on his deathbed in Trinidad and Tobago (Trinidad), Davies married the defendant. He remained domiciled in N.S., but Davies and the defendant intended to reside in Trinidad. The law in both N.S. and Trinidad provided that a marriage revoked a prior will. However, unlike the law of N.S., the law of Trinidad also provided that a deathbed marriage (marriage in extremis) did not revoke a prior Trinidad will. The plaintiff claimed that the laws of Trinidad applied and the Trinidad deathbed marriage did not revoke the prior N.S. will.

The Nova Scotia Supreme Court, in a judgment reported (2010), 297 N.S.R.(2d) 136; 943 A.P.R. 136, held that the law of N.S. governed the revocation of wills. Since the Trinidad deathbed marriage was a valid marriage under s. 17 of the Wills Act, the marriage revoked the N.S. will, even if a Trinidad will would not have been revoked. The plaintiff appealed.

The Nova Scotia Court of Appeal dismissed the appeal.

Conflict of Laws - Topic 6081.1

Succession - Wills - Revocation by marriage - [See Wills - Topic 2337 ].

Conflict of Laws - Topic 6088

Succession - Wills - Moveables - [See Wills - Topic 2337 ].

Conflict of Laws - Topic 6089

Succession - Wills - Immoveables - [See Wills - Topic 2337 ].

Wills - Topic 2337

Revocation - By act of testator - By subsequent marriage - Davies and the plaintiff separated in 1993 and divorced in 2001 - Davies moved to Trinidad and Tobago (Trinidad) in 1999 for work - He commenced a relationship with the defendant in 2000 - In 2007, while on his deathbed, Davies and the defendant married - The marriage was valid under s. 17 of the Nova Scotia Wills Act - He died two days later - The law in both Nova Scotia (N.S.) and Trinidad provided that a marriage revoked a prior will - However, unlike the law of N.S., the law of Trinidad also provided that a deathbed marriage (marriage in extremis) did not revoke a prior Trinidad will - A deathbed marriage was unknown to Canadian law - The plaintiff characterized the issue as a question of matrimonial law, which was governed by the law of the intended matrimonial domicile (Trinidad), rather than an issue of succession, which was governed by the law of Davies' domicile (N.S.) - Accordingly, applying the laws of Trinidad, the plaintiff argued that Davies' 1989 will, under which she was a beneficiary, was not revoked by the Trinidad deathbed marriage - The trial judge held that the substantive law of N.S. applied to both movables and immovables, as N.S. was Davies' domicile at the time of marriage to the defendant - Accordingly, a valid marriage in Trinidad revoked the prior will in N.S., notwithstanding that a Trinidad will would have survived the deathbed marriage - The Nova Scotia Court of Appeal affirmed the decision - The trial judge did not err in characterizing the issue as one of succession law, rather than matrimonial law, or in applying the choice of law that resolved the issue - See paragraphs 1 to 35.

Cases Noticed:

Martin, Re; Loustalan v. Loustalan, [1900] P. 211 (C.A.), refd to. [para. 20].

Davies v. Davies (1915), 8 W.W.R. 803 (Alta. S.C.), refd to. [para. 20].

Covone Estate, Re (1989), 36 E.T.R. 114 (B.C.S.C.), refd to. [para. 20].

Allison v. Allison, [1998] B.C.T.C. Uned. E15; 1988 CanLII 2984 (S.C.), refd to. [para. 20].

Seifert v. Seifert (1914), 23 D.L.R. 440 (Ont. S.C.), refd to. [para. 20].

Wadsworth v. McCord (1886), 12 S.C.R. 466, affd. (1889), 14 A.C. 631 (P.C.), refd to. [para. 22].

Raiffeisen Zentralbank Osterreich AG v. An Feng Steel Co. and others, [2001] EWCA Civ. 68; [2001] Q.B. 825 (C.A.), refd to. [para. 27].

Tolofson v. Jensen and Tolofson, [1994] 3 S.C.R. 1022; 175 N.R. 161; 77 O.A.C. 81; 51 B.C.A.C. 241; 84 W.A.C. 241, refd to. [para. 32].

Spar Aerospace Ltd. v. American Mobile Satellite Corp. et al., [2002] 4 S.C.R. 205; 297 N.R. 83; 2002 SCC 78, refd to. [para. 32].

Authors and Works Noticed:

Castel, Jean-Gabriel, and Walker, Janet, Canadian Conflict of Laws (6th Ed. 2005) (loose-leaf update 2010), generally [para. 19]; pp. 4-3 [para. 22]; 27-11, para. 27.4(i) [para. 30].

Dicey, A.V., Morris, J.H.C., and Collins, Lawrence, Conflict of Laws (14th Ed. 2006), paras. 2-038 [para. 28]; 2-039 [para. 20]; 27R-084, 27.08 [para. 30].

Kincaid, Peter, Jensen v. Tolofsen and the Revolution in Tort Choice of Law (1995), 74 Can. Bar Rev. 537, pp. 541 to 545 [para. 33].

Counsel:

Timothy C. Matthews, Q.C., and Gregory Clooney, for the appellant;

J. Gordon Allen, for the respondent.

This appeal was heard on June 14, 2011, at Halifax, N.S., before Saunders, Farrar and Bryson, JJ.A., of the Nova Scotia Court of Appeal.

On September 13, 2011, Bryson, J.A., delivered the following judgment for the Court of Appeal.