Kilpatrick v. Kellar, 2002 NBQB 190

• Judge: McLellan, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: June 03, 2002
• Jurisdiction: New Brunswick
• Citations: 2002 NBQB 190;(2002), 264 N.B.R.(2d) 21 (TD)

Kilpatrick v. Kellar (2002), 264 N.B.R.(2d) 21 (TD);

    264 R.N.-B.(2e) 21; 691 A.P.R. 21

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

....................

Temp. Cite: [2003] N.B.R.(2d) TBEd. JN.011

Leslie Stewart Kilpatrick (applicant) v. Gladys Kellar (respondent)

(S/M/20/02; 2002 NBQB 190)

Indexed As: Kilpatrick v. Kellar

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Saint John

McLellan, J.

June 7, 2002.

Summary:

In her 1991 will, the testatrix left her mini-home to Kellar and the residue of her estate to Kellar and Kilpatrick. In 1996, the tes­tatrix entered a nursing home and Kellar and Kilpatrick sold the mini-home under a power of attorney to pay for her care. The sale was made by taking back a chattel mortgage. Payments were made into a separate bank account. The testatrix died. Kilpatrick ap­plied for a determination of entitlement to the bank account.

The New Brunswick Court of Queen's Bench, Trial Division, held s. 20(2) of the Wills Act applied and the disputed bank account was substituted for the specific bequest of the mini-home.

Wills - Topic 4150

Failure of gifts - Implied revocation - Ademption - Rights in place of property devised - In her 1991 will, the testatrix left her mini-home to Kellar and the residue of her estate to Kellar and Kilpatrick - In 1996, the testatrix entered a nursing home and Kellar and Kilpatrick sold the mini-home under a power of attorney to pay for her care - The sale was made by taking back a chattel mortgage - Payments were made into a separate bank account - The testatrix died - Kilpatrick applied for a determination of entitlement to the bank account - The New Brunswick Court of Queen's Bench, Trial Division, held s. 20(2) of the Wills Act applied and the disputed bank account was substituted for the specific bequest of the mini-home.

Cases Noticed:

Church v. Hill, [1923] S.C.R. 642, refd to. [para. 7].

Hughson, In re, [1955] S.C.R. 498, refd to. [para. 7].

McLean (A. Neil) Estate of, Re (1969), 1 N.B.R.(2d) 500 (C.A.), refd to. [para. 8].

Citadel General Assurance Co. et al. v. Lloyd's Bank Canada et al., [1997] 3 S.C.R. 805; 219 N.R. 323; 206 A.R. 321; 156 W.A.C. 321, refd to. [para. 10].

Lipkin Gorman v. Karpnale Ltd., [1991] 3 W.L.R. 10 (H.L.), refd to. [para. 10].

Counsel:

Lawrence E. Veniot, for the applicant;

Frank R. Longstaff, for the respondent.

This application was heard on June 3, 2002, by McLellan, J., of the New Bruns­wick Court of Queen's Bench, Trial Divi­sion, Judicial District of Saint John, who delivered the following decision on June 7, 2002.