Hayward Estate, Re, (2010) 291 N.S.R.(2d) 294 (SC)

• Judge: Boudreau, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: June 24, 2009
• Jurisdiction: Nova Scotia
• Citations: (2010), 291 N.S.R.(2d) 294 (SC);2010 NSSC 6

Hayward Estate, Re (2010), 291 N.S.R.(2d) 294 (SC);

    922 A.P.R. 294

MLB headnote and full text

Temp. Cite: [2010] N.S.R.(2d) TBEd. JN.012

In The Estate of George Michael Hayward

(Probate No. 3492; Dig-308922; 2010 NSSC 6)

Indexed As: Hayward Estate, Re

Nova Scotia Supreme Court

Boudreau, J.

June 7, 2010.

Summary:

A husband's 1995 will named his wife executrix and sole beneficiary. The spouses separated in 2002 and divorced in 2004. The husband died in 2008. He had neither revoked his 1995 will nor executed a new will. Section 19A of the Wills Act came into force two weeks before he died. Section 19A provided that a finalized divorce judgment nullified any bequest to a former spouse that was contained in a prior will. At issue was whether section 19A applied to the husband's will and, if not, whether the wife had waived or renounced any entitlement under his will or whether equity precluded her from claiming against his estate.

The Nova Scotia Supreme Court held that the wife was entitled to the bequest. Section 19A could not be read retroactively or retrospectively, notwithstanding that the wife would not be prejudiced by its application where she had already received a fair and appropriate division of marital property upon divorce. The spouses' mutual waiver or release in the separation agreement respecting any claim against the other spouse's estate did not bind the wife. The husband was entitled to dispose of his estate as he saw fit. Finally, there was no basis in equity to disinherit the wife.

Estoppel - Topic 1381

Estoppel in pais (by conduct) - Circumstances where doctrine not applicable - General - [See Releases - Topic 4124 ].

Releases - Topic 4124

Operation - Interests released - Wife's claim against husband's estate - Effect of - A husband's 1995 will named his wife executrix and sole beneficiary - The spouses separated in 2002 and divorced in 2004 - The separation agreement provided that each spouse "released all rights which he or she might have ... to any share in the estate of the other" - The husband died in 2008 - He had neither revoked his 1995 will nor executed a new will - At issue was whether the wife was disentitled to inherit under the will, having renounced or released any claim against the husband's estate - The Nova Scotia Supreme Court held that the wife remained entitled to inherit - The court stated that "while the separation agreement ... includes a waiver of any right to share in the estate or to administer the estate, it does not revoke the will and it cannot be taken to remove the testator's right to dispose of his estate as he saw fit. ... the alleged waivers or renunciation contained in the [spouses'] separation and divorce documents do not contractually bind [the wife] in the present case." - Similarly, the wife was not estopped from accepting the bequest nor did the doctrine of preclusion apply to preclude the inheritance - See paragraphs 38 to 56, 66 to 68.

Statutes - Topic 6704

Operation and effect - Commencement, duration and repeal - Retrospective and retroactive enactments - Presumption against retrospectivity and retroactivity - A husband's 1995 will named his wife executrix and sole beneficiary - The spouses separated in 2002 and divorced in 2004 - The husband died in 2008 - He had neither revoked his 1995 will nor executed a new will - Section 19A of the Wills Act came into force two weeks before he died - Section 19A provided that a finalized divorce judgment nullified any bequest to a former spouse that was contained in a prior will - The Nova Scotia Supreme Court held that s. 19A did not apply to nullify the bequest to the wife - Section 19A was substantive legislation which was presumed not to apply retroactively or retrospectively - The court held that s. 19A was forward looking and could not be read retroactively or retrospectively, notwithstanding that the wife would not be prejudiced by its application where she had already received a fair and appropriate division of marital property upon divorce - See paragraphs 1 to 37.

Wills - Topic 1110

Donees - Disclaimer or renunciation by donee - Contractual promise to renounce - [See Releases - Topic 4124 ].

Wills - Topic 2335

Revocation - By act of testator - By agreement - [See Releases - Topic 4124 ].

Wills - Topic 2352

Revocation - By operation of law - By retrospective legislation - [See Statutes - Topic 6704 ].

Cases Noticed:

Thibault Estate, Re (2009), 272 N.S.R.(2d) 371; 869 A.P.R. 371; 2009 NSSC 4 (Prob. Ct.), refd to. [para. 14].

MacKenzie v. Commissioner of Teachers' Pensions (B.C.) (1992), 15 B.C.A.C. 69; 27 W.A.C. 69 (C.A.), refd to. [para. 14].

Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, [1977] 1 S.C.R. 271; 7 N.R. 401, refd to. [para. 16].

Quebec (Attorney General) v. Healy, [1987] 1 S.C.R. 158; 73 N.R. 288; 6 Q.A.C. 56, refd to. [para. 17].

Workers' Compensation Board (N.S.) v. Muise et al. (1998), 170 N.S.R.(2d) 253; 515 A.P.R. 253 (C.A.), refd to. [para. 20].

Matejka Estate, Re, [1984] B.C.J. No. 1645 (C.A.), refd to. [para. 22].

Page Estate v. Sachs (1993), 60 O.A.C. 122 (C.A.), dist. [para. 27].

Robinson v. Ostrom - see Morrell Estate v. Robinson.

Morrell Estate v. Robinson (2008), 269 N.S.R.(2d) 58; 860 A.P.R. 58; 2008 CarswellNS 530; 2008 NSSC 295, affd. (2009), 285 N.S.R.(2d) 185; 905 A.P.R. 185; 2009 NSCA 127, refd to. [paras. 40, 44].

Smith, Re, [2001] 3 All E.R. 552 (Ch.), refd to. [para. 46].

Burrows (John) Ltd. v. Subsurface Surveys Ltd., [1968] S.C.R. 607, refd to. [para. 51].

Maracle v. Travellers Indemnity Co. of Canada, [1991] 2 S.C.R. 50; 125 N.R. 294; 47 O.A.C. 333; 1991 CarswellOnt 450, refd to. [para. 52].

White et al. v. Halifax (Regional Municipality) Pension Committee (2007), 252 N.S.R.(2d) 39; 804 A.P.R. 39; 2007 CarswellNS 68; 2007 NSCA 22, refd to. [para. 53].

Saskatchewan River Bungalows Ltd. and Fikowski v. Maritime Life Assurance Co., [1994] 2 S.C.R. 490; 168 N.R. 381; 155 A.R. 321; 73 W.A.C. 321; 1994 CarswellAlta 769, refd to. [para. 54].

Ward v. Ward, [2006] B.C.T.C. Uned. 211; 2006 CarswellBC 667; 2006 BCSC 448, refd to. [para. 55].

Marks v. Marks (1908), 40 S.C.R. 210, refd to. [para. 61].

Marion v. Marion Estate et al., [2009] O.T.C. Uned. 520; 2009 CanLII 9443 (Sup. Ct.), refd to. [para. 62].

Rowland, Re; Smith v. Russell et al., [1962] 2 All E.R. 837 (C.A.), refd to. [para. 62].

Burke, Re (1959), 20 D.L.R.(2d) 396; 1959 CarswellOnt 98 (C.A.), refd to. [para. 62].

Downton v. Royal Trust Co. et al., [1973] S.C.R. 437, refd to. [para. 66].

Statutes Noticed:

Matrimonial Property Act, R.S.N.S. 1989, c. 275, sect. 28 [para. 58].

Wills Act, R.S.N.S. 1989, c. 505, sect. 8A [para. 64]; sect. 19A [para. 9]; sect. 22, sect. 23 [para. 11].

Counsel:

Gregory Barro, for the applicant, Nancy Vera Hayward;

Eric Sturk, for the respondent, Michael Philip Hayward.

This application was heard on June 24, 2009, at Digby, N.S., before Boudreau, J., of the Nova Scotia Supreme Court, who delivered the following judgment on June 7, 2010.