MacDonald v. MacDonald Estate, 2009 NSSC 323

• Jurisdiction: Nova Scotia
• Judge: Kennedy
• Neutral Citation: 2009 NSSC 323
• Citation: 2009 NSSC 323,(2009), 283 N.S.R.(2d) 100 (SC),283 NSR(2d) 100,(2009), 283 NSR(2d) 100 (SC),283 N.S.R.(2d) 100
• Date: 23 June 2009
• Court: Supreme Court of Nova Scotia (Canada)

MacDonald v. MacDonald Estate (2009), 283 N.S.R.(2d) 100 (SC);

    900 A.P.R. 100

MLB headnote and full text

Temp. Cite: [2009] N.S.R.(2d) TBEd. NO.013

Marguerite MacDonald (applicant) v. Estate of Jean Pringle MacDonald (defendant)

(Hfx No. 308492; 57303; 2009 NSSC 323)

Indexed As: MacDonald v. MacDonald Estate

Nova Scotia Supreme Court

Kennedy, C.J.S.C.

September 11, 2009.

Summary:

The applicant applied for proof in solemn form of a purported will.

The Nova Scotia Supreme Court dismissed the application.

Statutes - Topic 6704

Operation and effect - Commencement, duration and repeal - Retrospective and retroactive enactments - Presumption against retrospectivity and retroactivity - [See Statutes - Topic 6744 ].

Statutes - Topic 6744

Operation and effect - Commencement, duration and repeal - Prospective enactments - What constitutes - The Nova Scotia Supreme Court stated that in 2006, the Wills Act was amended, although the proclamation of the amended Act did not take place until August 18, 2008 - Section 6(2) was added allowing for handwritten wills signed by the testator - Section 8A was a brand new section that gave the courts significant discretion: where a document did not satisfy the strict requirements of formality in the Wills Act, they could, nevertheless, where they were satisfied as to testamentary intention, find validity in the flawed documents - However, the court held that ss. 6 and 8 did not operate retroactively or retrospectively - The Wills Act did not contain a transitional provision making s. 6 or 8 operate retroactively or retrospectively.

Cases Noticed:

Thibault Estate, Re (2009), 272 N.S.R.(2d) 371; 869 A.P.R. 371; 2009 NSSC 4 (Prob. Ct.), appld. [para. 23].

Matejka Estate, Re, [1984] B.C.J. No. 1945 (C.A.), refd to. [para. 28].

Page Estate v. Sachs (1993), 61 O.A.C. 122 (C.A.), refd to. [para. 28].

Statutes Noticed:

Wills Act, R.S.N.S. 1989, c. 505, sect. 6(2) [para. 16]; sect. 8A [para. 17].

Authors and Works Noticed:

Driedger, Elmer A., Statutes: Retroactive Retrospective Reflections (1978), 56 Can. Bar Rev. 264, p. 276 [para. 25].

Counsel:

Stephen Kent, for the applicant;

Helen Foote, for the defendant.

This application was heard on June 23, 2009, in Halifax, N.S., by Kennedy, C.J.S.C., of the Nova Scotia Supreme Court, who gave the following oral decision on September 11, 2009, which was released in writing on November 2, 2009.