McKay v. Henderson Estate, (1991) 113 N.B.R.(2d) 308 (TD)

• Judge: Stevenson, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: December 12, 1990
• Jurisdiction: New Brunswick
• Citations: (1991), 113 N.B.R.(2d) 308 (TD)

McKay v. Henderson Estate (1991), 113 N.B.R.(2d) 308 (TD);

    113 R.N.-B.(2e) 308; 285 A.P.R. 308

MLB headnote and full text

[French language version follows English language version]

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

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Gordon McKay (applicant) v. Donald Ross, in his capacity as Executor and Trustee of the Estate of the late Mrs. Addie Alfreda Henderson, and William Demings (respondents)

(F/M/116/90)

Indexed As: McKay v. Henderson Estate

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Fredericton

Stevenson, J.

February 4, 1991.

Summary:

The beneficiary of a life estate in a home became ill and was permanently hospitalized. The ultimate beneficiary of the property applied to have the property conveyed to him before termination of the life estate.

The New Brunswick Court of Queen's Bench, Trial Division, dismissed the appli­cation.

Wills - Topic 7412

Construction - Quality of interest taken - Life estate - Termination of - A testator and her common law husband lived together many years in her home - Upon her death she gave the husband a life estate as long as he paid the mortgage, taxes, etc. and as long as he did not express a desire to move - Upon a failure to meet these conditions or upon his death, the property went to the testator's nephew - The husband became ill and was perma­nently hospitalized - The nephew sought to have the life estate terminated and the property conveyed to him - The New Brunswick Court of Queen's Bench, Trial Division, considering the circumstances, the terms of the will and past jurispru­dence, refused the nephew's request.

Cases Noticed:

Moore v. Royal Trust Co., [1956] S.C.R. 880, refd to. [para. 20].

McLean, Re, [1941] 1 D.L.R. 722 (N.B.C.A.), refd to. [para. 20].

McColgan, Re (1969), 4 D.L.R.(3d) 572 (Ont. H.C.), refd to. [paras. 20, 21].

Pettigrew v. Durley (1972), 5 N.B.R.(2d) 834 (Q.B.), refd to. [para. 20].

Counsel:

Karen L. Caverhill, for the applicant;

Kenneth L. Oliver, for the respondent, Donald Ross;

Jane L. Blakely, for Marilyn Davidson, litigation guardian of the respondent, William Demings.

This application was heard on December 12, 1990, and January 14, 1991, before Stevenson, J., of the New Brunswick Court of Queen's Bench, Trial Division, who delivered the following decision on February 4, 1991.