Hayward Estate, Re, (2011) 311 N.S.R.(2d) 136 (CA)

• Judge: Oland, Fichaud and Beveridge, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: December 20, 2011
• Jurisdiction: Nova Scotia
• Citations: (2011), 311 N.S.R.(2d) 136 (CA);2011 NSCA 118

Hayward Estate, Re (2011), 311 N.S.R.(2d) 136 (CA);

    985 A.P.R. 136

MLB headnote and full text

Temp. Cite: [2011] N.S.R.(2d) TBEd. DE.038

Michael Philip Hayward in his personal capacity as well as in his capacity as Administrator of the Estate of George Michael Hayward (appellant) v. Nancy Vera Hayward (respondent)

(CA 334009; 2011 NSCA 118)

Indexed As: Hayward Estate, Re

Nova Scotia Court of Appeal

Oland, Fichaud and Beveridge, JJ.A.

December 20, 2011.

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, in a judgment reported (2010), 291 N.S.R.(2d) 294; 922 A.P.R. 294, 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. The estate appealed.

The Nova Scotia Court of Appeal allowed the appeal. The appointment of the wife as executrix and the bequest to her were invalidated by s. 19A when the spouses divorced.

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 trial judge held that the wife remained entitled to inherit, stating 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 - The Nova Scotia Court of Appeal agreed that the wife was not estopped from claiming against the husband's estate because of the waiver in the separation agreement - There was no evidence that the husband, in choosing not to amend his will, relied on the wife's execution of the separation agreement as the reason for not doing so - See paragraphs 67 to 70, 74.

Statutes - Topic 2263

Interpretation - Presumptions and rules in aid - Against interference with vested rights - [See Statutes - Topic 6704 ].

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 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, which came into force shortly before he died, provided that divorce invalidated any bequest to a former spouse absent a contrary intention in the will, separation agreement or marriage contract - The trial judge held that s. 19A did not apply, as it 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 - The Nova Scotia Court of Appeal held that s. 19A applied to invalidate the bequest - Oland, J.A., held that s. 19A applied retrospectively - The clear and unambiguous words of s. 19A demonstrated a legislative intention that the provision operate retrospectively - The presumption against interference with vested rights did not apply, because the wife's entitlement under the will was an expectancy, not a vested right - Beveridge, J.A., agreed that s. 19A applied, but on the basis that s. 19A was the law when the husband died, not because it applied retrospectively - Fichaud, J.A., held that s. 19A attached legal consequences to facts (will and divorce) that came into existence before it was enacted - Section 19A's directives operated prospectively, but the conditions precedent to the directives were factually prospective - It was unnecessary to force a single label (prospective or retrospective) on s. 19A - When the husband died, s. 19A was already the law and the bequest was invalidated - See paragraphs 17 to 50; 73 to 127; 145 to 156.

Wills - Topic 1110

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

Wills - Topic 1573

Preparation and execution - Formal validity - Curing of irregularity - [See Wills - Topic 1574 ].

Wills - Topic 1574

Preparation and execution - Formal validity - Testamentary intention - Section 8A(b) of the Wills Act provided that if the court was satisfied "that a writing embodies the intention of the deceased to revoke, alter or revive a will of the deceased or the testamentary intentions of the deceased embodied in a document other than a will" the court may find that the writing was valid notwithstanding it was executed without compliance with the formal requirements of the Act - A husband's 1995 will named his wife executrix and sole beneficiary - They 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 without revoking or amending his will - The trial judge held that the separation agreement, which made no reference to the husband's will, was not a "writing" capable of altering or revoking the 1995 will under s. 8A(b) - The Nova Scotia Court of Appeal held that the trial judge erred - Oland, J.A., held that nothing in s. 8A suggested that it applied only if the document sought to be accepted as a will included explicit reference to the testator's previous will - The judge erred in failing to determine whether the separation agreement contained the husband's testamentary intentions as required by s. 8A - Beveridge, J.A., held that the judge did not fail to consider whether the separation agreement satisfied s. 8A or in finding that the separation agreement did not satisfy s. 8A - Fichaud, J.A., held that the separation agreement was a "writing" under s. 8A that expressed the husband's intention to alter the effect of his 1995 will - See paragraphs 51 to 66, 128 to 136, 157 to 163.

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:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 16].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 19].

Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, [1977] 1 S.C.R. 271; 7 N.R. 401, refd to. [para. 20].

Spooner Oils Ltd. et al. v. Turner Valley Conservation Board et al., [1933] S.C.R. 629, refd to. [para. 21].

Dikranian v. Quebec (Attorney General), [2005] 3 S.C.R. 530; 342 N.R. 1; 2005 SCC 73, refd to. [para. 21].

R. v. Nova Scotia Pharmaceutical Society et al. (No. 2) (1991), 102 N.S.R.(2d) 222; 279 A.P.R. 222 (C.A.), refd to. [para. 22].

Épiciers Unis Métro-Richelieu Inc. v. Collin, [2004] 3 S.C.R. 257; 326 N.R. 89, refd to. [para. 23].

Barry and Brosseau v. Alberta Securities Commission, [1989] 1 S.C.R. 301; 93 N.R. 1; 96 A.R. 241, refd to. [para. 24].

Brosseau v. Alberta Securities Commission - see Barry and Brosseau v. Alberta Securities Commission.

Quebec (Attorney General) v. Healy, [1987] 1 S.C.R. 158; 73 N.R. 288; 6 Q.A.C. 56, refd to. [para. 27].

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

Thibault Estate, Re (2009), 272 N.S.R.(2d) 371; 869 A.P.R. 371; 2009 NSSC 4 (Prob. Ct.), refd to. [para. 27].

MacDonald v. MacDonald Estate (2009), 283 N.S.R.(2d) 100; 900 A.P.R. 100; 2009 NSSC 323, refd to. [para. 40].

George v. Daily et al. (1997), 115 Man.R.(2d) 27; 139 W.A.C. 27; 143 D.L.R.(4th) 273 (C.A.), refd to. [para. 56].

Robitaille v. Robitaille Estate (2011), 303 N.S.R.(2d) 238; 957 A.P.R. 238; 2011 NSSC 203, refd to. [para. 59].

Fong Estate, Re (2011), 306 N.S.R.(2d) 370; 968 A.P.R. 370; 2011 NSSC 315, refd to. [para. 59].

Morrell Estate v. Robinson (2008), 269 N.S.R.(2d) 58; 860 A.P.R. 58; 2008 NSSC 295, affd. (2009), 285 N.S.R.(2d) 185; 905 A.P.R. 185; 2009 NSCA 127, refd to. [para. 63].

Hasluck v. Pedley (1874), L.R. 19 Eq. 271, refd to. [para. 114].

Constable v. Constable (1879), 11 Ch. D. 681, refd to. [para. 116].

Capron v. Capron (1874), 43 L.J. Ch. 477, refd to. [para. 116].

Bridger, Re, [1894] 1 Ch. D. 297, refd to. [para. 117].

West v. Gwyne, [1911] 2 Ch. D. 1 (C.A.), refd to. [para. 118].

Statutes Noticed:

Wills Act, R.S.N.S. 1989, c. 505, sect. 6(2) [para. 8]; sect. 8A [para. 9]; sect. 19A [para. 10].

Authors and Works Noticed:

Côté, Pierre-André, Interpretation of Legislation in Canada (3rd Ed. 2000), pp. 160, 161 [para. 26].

Côté, Pierre-André, Interpretation of Legislation in Canada (4th Ed. 2011), pp. 143, 144 [para. 152].

Craies on Statute Law (7th Ed. 1971), pp. 383 [para. 78]; 387 [para. 105].

Driedger, Elmer A., Statutes: Retroactive Retrospective Reflections (1978), 56 Can. Bar Rev. 264, pp. 267 [para. 106]; 271 [para. 108].

Maxwell, Peter Benson, Interpretation of Statutes (12th Ed. 1969), p. 226 [para. 81].

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), pp. 154, 330, 331 [para. 95].

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (5th Ed. 2008), p. 673 [para. 154].

Counsel:

Erik K. Sturk and Marc P. Comeau, for the appellant;

Gregory D. Barro, for the respondent.

This appeal was heard on May 17, 2011, at Halifax, N.S., before Oland, Fichaud and Beveridge, JJ.A., of the Nova Scotia Court of Appeal.

On December 20, 2011, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Oland, J.A. - see paragraphs 1 to 72;

Beveridge, J.A. - see paragraphs 73 to 142;

Fichaud, J.A. - see paragraphs 143 to 164.