Davies v. Collins, (2010) 297 N.S.R.(2d) 136 (SC)

• Judge: Rosinski, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: November 04, 2010
• Jurisdiction: Nova Scotia
• Citations: (2010), 297 N.S.R.(2d) 136 (SC);2010 NSSC 457

Davies v. Collins (2010), 297 N.S.R.(2d) 136 (SC);

    943 A.P.R. 136

MLB headnote and full text

Temp. Cite: [2010] N.S.R.(2d) TBEd. DE.034

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

(Hfx. No. 328880; 2010 NSSC 457)

Indexed As: Davies v. Collins

Nova Scotia Supreme Court

Rosinski, J.

December 16, 2010.

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 held 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valid marriage under s. 17 of the Wills Act, the marriage revoked the N.S. will, even if a Trinidad will would not have been revoked.

Conflict of Laws - Topic 6081.1

Succession - Wills - Revocation by marriage - The Nova Scotia Supreme Court stated that "for moveables and immovables, it would seem consistent to require the same rule to apply to the question of whether the law of the testator's domicile (movables) or the lex situs (immovables) should apply to govern whether a will is revoked by marriage. It is most logical for that single rule to be the domicile of the testator at the relevant time (time of marriage). This is the proper approach to this issue in my opinion but it has not, as yet, been endorsed in any cases." - See paragraph 91.

Conflict of Laws - Topic 6081.1

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

Conflict of Laws - Topic 6088

Succession - Wills - Moveables - [See first Conflict of Laws - Topic 6081.1 ].

Conflict of Laws - Topic 6089

Succession - Wills - Immoveables - [See first Conflict of Laws - Topic 6081.1 ].

Contracts - Topic 9000

Rights and liabilities of strangers to contract - General - Privity of contract - [See Wills - Topic 1110 ].

Contracts - Topic 9903

Promissory estoppel - General principles - Persons entitled to rely on - [See Wills - Topic 1110 ].

Family Law - Topic 213

Marriage - Invalid marriages - Deathbed marriage (marriage in extremis) - 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 - He died two days later - The plaintiff claimed that a deathbed marriage in Trinidad was not a valid "marriage" under s. 17 of the Nova Scotia Wills Act and that, accordingly, there was no "marriage" that had the effect of revoking Davies' 1989 will under which the plaintiff was a beneficiary - The Nova Scotia Supreme Court held that a deathbed marriage in Trinidad, although unknown to Canadian law, was a valid "marriage" where it was both essentially and formally valid under Nova Scotia law - The fact that the consequence of a deathbed marriage in Trinidad (did not revoke prior wills) was different from the law of Nova Scotia (marriage revoked prior wills), did not affect whether the marriage was valid - The court stated that "I conclude that the proper interpretation of 'marriage' in s. 17 of the Wills Act does not intend to distinguish between marriages based on whether they revoke a prior will or not, and that therefore, a marriage in extremis in Trinidad falls within the definition of 'marriage' in s. 17 in the Wills Act" - See paragraphs 24 to 54.

Wills - Topic 1110

Donees - Disclaimer or renunciation by donee - Contractual promise to renounce - 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 - He died two days later - Davies had a 1989 will in Nova Scotia that named the plaintiff as beneficiary - A clause in the separation agreement between Davies and the plaintiff renounced her right to make any claim against Davies' estate - The defendant sought to enforce the separation agreement clause to preclude the plaintiff's claim under the will - The Nova Scotia Supreme Court held that "where a party seeks specific performance of a renunciation to take under a will pursuant to a clause in a separation agreement, such claims will generally be denied where the party claiming the benefit of the renunciation [the defendant] was not a party to the separation agreement/contract ... while the [defendant's] position is based not on the enforcement of the contract/separation agreement, but rather promissory estoppel, the principles are somewhat similar in that promissory estoppel relies on the fact that one party, by words or conduct, having made a promissory assurance to another, caused the other party to act in some way and change it's position, and that the doctrine should be available to insist upon the first party respecting the assurances made." - See paragraphs 160 to 161.

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 - 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 Nova Scotia Supreme Court 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 - See paragraphs 55 to 152.

Cases Noticed:

MacDougall v. Workers' Compensation Appeals Tribunal (N.S.) et al. (2010), 299 N.S.R.(2d) 106; 947 A.P.R. 106; 2010 NSCA 92, refd to. [para. 38].

Martin, Re; Loustalan v. Loustalan, [1900] P. 211, not folld. [para. 94].

Seifert v. Seifert (1914), 23 D.L.R. 440 (Ont. C.A.), dist. [para. 94].

Davies v. Davies (1915), 24 D.L.R. 737 (Alta. S.C.), refd to. [para. 94].

Covone Estate, Re (1989), 36 E.T.R. 114 (B.C.S.C.), dist. [para. 94].

Allison v. Allison, [1998] B.C.T.C. Uned. E15; [1999] 3 W.W.R. 438; 23 E.T.R.(2d) 237 (S.C.), dist. [para. 94].

Thibault Estate, Re (2009), 272 N.S.R.(2d) 371; 869 A.P.R. 371; 2009 NSSC 4 (Prob. Ct.), refd to. [para. 104].

Hayward Estate, Re (2010), 291 N.S.R.(2d) 294; 922 A.P.R. 294; 2010 NSSC 6, refd to. [para. 104].

Senkiw v. Muzyka (1969), 68 W.W.R.(N.S.) 515; 4 D.L.R.(3d) 708 (Sask. C.A.), affd. (1970), 12 D.L.R.(3d) 504 (S.C.C.), refd to. [para. 138].

K. v. K., [1943] 2 D.L.R. 102 (N.S.C.A.), refd to. [para. 150].

Morrell Estate v. Robinson (2009), 285 N.S.R.(2d) 185; 905 A.P.R. 185; 52 E.T.R.(3d) 1; 2009 NSCA 127, refd to. [para. 160].

Statutes Noticed:

Wills Act, R.S.N.S. 1989, c. 505, sect. 17 [para. 30].

Authors and Works Noticed:

Castel, Jean-Gabriel, and Walker, Janet, Canadian Conflict of Laws (6th Ed. 2005) (2010 Looseleaf), pp. 4-1 [para. 147]; 4-3 [para. 148]; 4-9 [para. 149]; 16-1 [para. 25]; 16-7 [para. 26]; 25-1, 25-2 [para. 133]; 27-2 [para. 80]; 27-5 [para. 81].

Dicey, A.V., Morris, J.H.C., and Collins, Lawrence, Conflict of Laws (14th Ed. 2006), pp. 37 to 38 [para. 68]; 48 to 50 [para. 77]; 1264, 1265 [para. 75]; para. 27-086 [para. 88]; para. 27-087 [paras. 75, 87]; para. 27-089 [para. 78]; para. 27-106 [para. 70]; para. 27R-084 [para. 73].

Durfee, Elizabeth, Revocation of Wills by Subsequent Change in the Condition or Circumstances of the Testator (1942), 40 Mich. L. Rev. 406, p. 407 [para. 47].

Falconbridge, J.D., Essays on the Conflict of Laws (2nd Ed. 1954), pp. 113 to 115 [para. 112].

Feeney, Thomas G., The Canadian Law of Wills (4th Ed. 2000) (2010 Looseleaf), para. 5.9 [para. 41].

Graunke, W.A., and Beuscher, J.H., The Doctrine of Implied Revocation of Wills by Reason of Change in Domestic Relations of the Testator (1930), 5 Wis. L. Rev. 387, generally [para. 44].

Nova Scotia, Law Reform Commission, Final Report: Reform of the Nova Scotia Wills Act (Nov. 2003) (online), http://lawreform.ns.ca/Downloads/Wills _Act_ Final_Report.pdf, pp. 28, 29 [para. 52].

Counsel:

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

J. Gordon Allen, for the respondent.

This application 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 December 16, 2010.