MacKinlay Estate, Re, (1993) 122 N.S.R.(2d) 354 (CA)

JudgeJones, Hallett and Freeman, JJ.A.
CourtCourt of Appeal of Nova Scotia (Canada)
Case DateJuly 08, 1993
JurisdictionNova Scotia
Citations(1993), 122 N.S.R.(2d) 354 (CA)

MacKinlay Estate, Re (1993), 122 N.S.R.(2d) 354 (CA);

    338 A.P.R. 354

MLB headnote and full text

Lulu Ellen MacKinlay (appellant) v. The Estate of Hugh Palmer MacKinlay (respondent)

(C.A. No. 02822)

Indexed As: MacKinlay Estate, Re

Nova Scotia Court of Appeal

Jones, Hallett and Freeman, JJ.A.

July 8, 1993.

Summary:

A testator's marriage revoked, by operation of law, his existing will. The day after mar­riage, the testator executed a codicil. The issue was whether the codicil revived the will under s. 21 of the Wills Act.

The Nova Scotia Probate Court, in a judg­ment reported 119 N.S.R.(2d) 345; 330 A.P.R. 345, held that the post-marriage codicil revived the pre-marriage will and codicil. The testator's widow appealed.

The Nova Scotia Court of Appeal allowed the appeal.

Wills - Topic 2406

Revival - Revival by codicil - A testator's will was revoked by operation of law upon his marriage - A post-marriage codicil was executed - The trial judge ruled that the post-marriage codicil revived the pre-marriage will and codicil under s. 21 of the Wills Act - The Nova Scotia Court of Appeal set aside the decision - The mere making of a codicil which referred to the pre-marriage will was not sufficient to revive the will - Section 21 required a clear "intention to revive" - Showing that the testator believed the pre-marriage will remained valid was insufficient to prove an intention to revive it.

Cases Noticed:

Steele, In Re the Goods of (1868), 1 P. & D. 575, refd to. [para. 11].

MacDonnell v. Purcell (1894), 23 S.C.R. 101, refd to. [para. 11].

Davis, In Re the Estate of, [1952] 1 All E.R. 509, refd to. [para. 11].

McLeod v. McNab, [1891] P.C. 471 (H.L.), refd to. [para. 15].

Statutes Noticed:

Wills Act, R.S.N.S. 1989, c. 505, sect. 17 [para. 3]; sect. 19, sect. 21 [para. 9].

Authors and Works Noticed:

Feeney, Thomas G., The Canadian Law of Wills (3rd Ed.), vol. 1, p. 158 [para. 18].

Halsbury's Laws of England (3rd Ed.), para. 1371 [para. 17].

Counsel:

Ronald W. Burton, for the appellant;

David Green, for the respondent.

This appeal was heard on June 11, 1993, before Jones, Hallett and Freeman, JJ.A., of the Nova Scotia Court of Appeal.

On July 8, 1993, Jones, J.A., delivered the following judgment for the Court of Appeal.

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1 practice notes
  • Little Estate, Re, (1998) 169 N.S.R.(2d) 113 (SC)
    • Canada
    • Nova Scotia Supreme Court of Nova Scotia (Canada)
    • June 18, 1998
    ...relative revocation and held that the 1980 will was not revoked when it was destroyed. Cases Noticed: MacKinley Estate, Re (1993), 122 N.S.R.(2d) 354; 338 A.P.R. 354 (C.A.), refd to. [para. Bridgewater Estate, Re, [1965] All E.R. 718, refd to. [para. 19]. Ott, Re (1972), 2 O.R. 5 (Surr. Ct.......
1 cases
  • Little Estate, Re, (1998) 169 N.S.R.(2d) 113 (SC)
    • Canada
    • Nova Scotia Supreme Court of Nova Scotia (Canada)
    • June 18, 1998
    ...relative revocation and held that the 1980 will was not revoked when it was destroyed. Cases Noticed: MacKinley Estate, Re (1993), 122 N.S.R.(2d) 354; 338 A.P.R. 354 (C.A.), refd to. [para. Bridgewater Estate, Re, [1965] All E.R. 718, refd to. [para. 19]. Ott, Re (1972), 2 O.R. 5 (Surr. Ct.......

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