Davies v. Collins, (2011) 303 N.S.R.(2d) 334 (SC)

• Judge: Rosinski, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: November 04, 2010
• Jurisdiction: Nova Scotia
• Citations: (2011), 303 N.S.R.(2d) 334 (SC);2011 NSSC 227

Davies v. Collins (2011), 303 N.S.R.(2d) 334 (SC);

    957 A.P.R. 334

MLB headnote and full text

Temp. Cite: [2011] N.S.R.(2d) TBEd. JN.034

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

(Hfx. No. 328880; 2011 NSSC 227)

Indexed As: Davies v. Collins

Nova Scotia Supreme Court

Rosinski, J.

June 8, 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valid marriage under s. 17 of the Wills Act, the marriage revoked the N.S. will, even if a Trinidad will would not have been revoked. At issue was costs. The plaintiff argued that since this was an estate matter, both parties should receive their costs on a solicitor/client basis out of the estate or, alternatively, that she should receive her party and party costs from the estate. The defendant claimed that her solicitor/client costs should be paid by the plaintiff, not out of the estate, because of the plaintiff's inappropriate conduct or, alternatively, the parties should be limited to party and party costs paid from the estate.

The Nova Scotia Supreme Court held that this case warranted a departure from the presumptive rule that both parties' costs be paid by the estate. Although the plaintiff's decision to litigate was not frivolous or unreasonable because the legal issue was novel, the plaintiff's motivation and conduct of the litigation was questionable. The court ordered the plaintiff to pay the defendant's party and party costs under rules 77.06(3) and 77.07 (Tariff "C" maximum $1,000 multiplied by four for a total of $4,000 appropriate).

Practice - Topic 7032.1

Costs - Party and party costs - Entitlement to party and party costs - Estate matters - Davies and his ex-wife separated in 1993 and formally divorced in 2001 - His 1989 Nova Scotia (N.S.) will left everything to his wife - In 1999, Davies moved to Trinidad and Tobago (T&T), where he commenced a relationship with the defendant in 2000 - On his deathbed in July 2007, Davies and the defendant were married (marriage in extremis) - The law in both N.S. and T&T provided that a marriage revoked a prior will - However, unlike the law of N.S., the law of T&T also provided that a deathbed marriage (marriage in extremis) did not revoke a prior T&T will - The plaintiff claimed that the laws of T&T applied, meaning that the N.S. will was not revoked, leaving her as the sole beneficiary of her ex-husband's estate - The trial judge dismissed the plaintiff's claim - N.S. law applied and the N.S. will was revoked - The plaintiff argued that since this was an estate matter, both parties should receive their costs on a solicitor/client basis out of the estate or, alternatively, that she should receive her party and party costs from the estate - The defendant claimed that her solicitor/client costs should be paid by the plaintiff, not out of the estate, because of the plaintiff's inappropriate conduct or, alternatively, the parties should be limited to party and party costs paid from the estate - The Nova Scotia Supreme Court held that this case warranted a departure from the presumptive rule that in "estate litigation" both parties' costs should be paid by the estate - Although the plaintiff's decision to litigate was not frivolous or unreasonable because the legal issue was novel, the plaintiff's motivation and conduct of the litigation was questionable - The court ordered the plaintiff to pay the defendant's party and party costs under rules 77.06(3) and 77.07 (Tariff "C" maximum $1,000 multiplied by four for a total of $4,000 appropriate).

Practice - Topic 7455

Costs - Solicitor and client costs - Entitlement - Estates and estate matters - [See Practice - Topic 7032.1 ].

Cases Noticed:

Ramsay Estate, Re, 2004 NSSC 162, refd to. [para. 12].

Morash Estate v. Morash, [1997] N.S.R.(2d) Uned. 107 (C.A.), refd to. [para. 17].

Hand Estate, Re (2011), 298 N.S.R.(2d) 391; 945 A.P.R. 391; 2011 NSSC 53 (Prob. Ct.), refd to. [para. 20].

National Bank Financial Ltd. v. Potter et al. (2008), 267 N.S.R.(2d) 339; 853 A.P.R. 339; 2008 NSSC 213, refd to. [para. 27].

Authors and Works Noticed:

Hull, Ian M., Costs in Estate Litigation (1998), 18 E.T.R.(2d) 218, generally [para. 18].

Counsel:

Timothy Matthews, Q.C., for the applicant;

J. Gordon Allen, for the respondent.

This matter was heard on November 4, 2010, at Halifax, N.S., before Rosinski, J., of the Nova Scotia Supreme Court, who delivered the following judgment on June 8, 2011.