Hart et al. v. Hart Estate, (1993) 124 N.S.R.(2d) 333 (SC)

• Judge: Saunders, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: September 20, 1993
• Jurisdiction: Nova Scotia
• Citations: (1993), 124 N.S.R.(2d) 333 (SC)

Hart v. Hart Estate (1993), 124 N.S.R.(2d) 333 (SC);

 345 A.P.R. 333

MLB headnote and full text

In The Matter Of the Testator's Family Maintenance Act, R.S.N.S. 1989, c. 465;

And In The Matter Of an application thereunder by Barbara Jean Hart and Brian Brown and Bradley Brown.

Barbara Jean Hart, by her Guardian ad Litem, Marilyn Giles and Brian Brown and Bradley Brown (plaintiffs) v. Germaine M.C. Richard of Lower Sackville, Halifax County, Province of Nova Scotia, and Roy Lewis, of Wentzell Lake, in the County of Lunenburg, Province of Nova Scotia, being the two Executors and Trustees of and under the Last Will and Testament of Robert G. Hart, deceased (defendants)

(S.H. No. 93-865)

Indexed As: Hart et al. v. Hart Estate

Nova Scotia Supreme Court

Saunders, J.

September 20, 1993.

Summary:

The testator's estate was valued at over $978,000, excluding a $93,000 R.R.S.P. The testator's will left $5,000 to each of two sons by his first marriage, $5,000 to a daughter by a subsequent relationship and $15,000 to another daughter and his sister. The balance of the estate was left to the testator's com­mon law spouse. The three children left $5,000 each applied under the Testator's Family Maintenance Act for proper main­tenance and support.

The Nova Scotia Supreme Court allowed the application. The court ordered that the two sons be paid an extra $43,000 each from the estate, the daughter who received $5,000 should receive an extra $50,000 and the daughter who received $15,000 should receive an extra $60,000.

Family Law - Topic 6639

Dependent's relief legislation - Persons entitled to relief - Child - Effect of adop­tion - A testator's two sons from his first marriage had been adopted by their moth­er's second husband - The sons claimed against the testator's estate as "dependents" for proper maintenance and support under the Testator's Family Maintenance Act - The estate claimed the adoption under the Children and Family Services Act extin­guished any rights they had under the Testator's Family Maintenance Act - The Nova Scotia Supreme Court held that the adoption did not preclude the adopted children from claiming proper maintenance and support from their lineal ancestor under the Testator's Family Maintenance Act - If the legislature had intended that result, that intent was not expressed clearly enough to achieve that result - See para­graphs 8 to 23.

Family Law - Topic 6706

Dependent's relief legislation - Awards - Lump sum payment - Children - A testa­tor's estate was valued at over $978,000 exclusive of a $93,000 R.R.S.P. - He left $5,000 to each of two sons from his first marriage, $5,000 to a daughter from a subsequent relationship and $15,000 to another daughter - The balance of the estate was left to his common law spouse - The testator was reclusive and miserly - Minimal relationship with all children except the last daughter - All children in need of monies - The Nova Scotia Supreme Court allowed the childrens' applications for proper maintenance and support under the Testator's Family Main­tenance Act - The bequests to all the children did not discharge the testator's moral obligation to them - The court ordered the estate to pay an additional $40,000 to each son, $50,000 to the first daughter and $60,000 to the last daughter - The awards would discharge the testa­tor's obligations to his children and still give effect to his intention to substantially benefit his common law spouse.

Cases Noticed:

Podolsky's Estate, Re (1980), 3 Man.R.(2d) 251; 111 D.L.R.(3d) 159 (C.A.), refd to. [para. 13].

Kuhn v. Kuhn Estate (1992), 112 N.S.R.(2d) 38; 307 A.P.R. 38 (T.D.), refd to. [para. 27].

Spinney v. Royal Trust Co. et al. (1973), 9 N.S.R.(2d) 699 (T.D.), refd to. [para. 29].

Little v. Little Estate (1974), 11 N.S.R.(2d) 701; 5 A.P.R. 701 (T.D.), refd to. [para. 29].

Bennett v. Morrison (1976), 16 N.S.R.(2d) 476; 16 A.P.R. 476 (C.A.), refd to. [para. 29].

Garrett v. Zwicker (1976), 15 N.S.R.(2d) 118; 14 A.P.R. 118 (C.A.), refd to. [para. 29].

Travagline v. Kendall and Travagline Estate (1978), 29 N.S.R.(2d) 442; 45 A.P.R. 442 (C.A.), refd to. [para. 29].

Moxon et al. v. Moxon's Estate (1980), 43 N.S.R.(2d) 116; 81 A.P.R. 116 (T.D.), refd to. [para. 29].

Montrose v. Montrose and Montrose Estate et al. (1980), 39 N.S.R.(2d) 339; 71 A.P.R. 339 (T.D.), refd to. [para. 29].

Coolen v. Coolen and Wilson (1980), 43 N.S.R.(2d) 67; 81 A.P.R. 67 (C.A.), refd to. [para. 29].

Statutes Noticed:

Adoption Act, S.N.S. 1952, c. 2, sect. 10(3) [para. 17].

Children and Family Services Act, R.S.N.S. 1989, c. 5, sect. 2(a)(iii) [para. 9]; sect. 80(1) [para. 10].

Testators' Family Maintenance Act, R.S.C. 1989, c. 465, sect. 2(b) [para. 4]; sect. 3(1), sect. 5(1) [para. 26].

Counsel:

Vincent F. Lambie, for the plaintiff, Bar­bara Jean Hart;

Kevin MacDonald, for the plaintiffs, Brian Brown and Bradley Brown;

Michael K. Power, for the defendants, Germaine M.C. Richard, Roy Lewis and Robert G. Hart, deceased (the Estate).

These applications were heard on May 26, June 14-16 and 21, 1993, at Halifax, N.S., before Saunders, J., of the Nova Scotia Supreme Court, who delivered the following judgment on September 20, 1993.