Morrell Estate v. Robinson et al., 2009 NSCA 127

• Judge: Saunders, Oland and Fichaud, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: December 10, 2009
• Jurisdiction: Nova Scotia
• Citations: 2009 NSCA 127;(2009), 285 N.S.R.(2d) 185 (CA)

Morrell Estate v. Robinson (2009), 285 N.S.R.(2d) 185 (CA);

    905 A.P.R. 185

MLB headnote and full text

Temp. Cite: [2009] N.S.R.(2d) TBEd. DE.035

Anne Robinson (appellant) v. Susan Elaine Ostrom, Executrix of the Estate of Ezra Morrell, Susan Elaine Ostrom, Walter Ostrom and Ingrid Ostrom (respondents)

(CA305792; 2009 NSCA 127)

Indexed As: Morrell Estate v. Robinson et al.

Nova Scotia Court of Appeal

Saunders, Oland and Fichaud, JJ.A.

December 10, 2009.

Summary:

Spouses divorced in 2007 after six years' marriage. A 2007 separation agreement provided that each spouse renounced and waived "any claim in the estate of the other and any right to share in the estate of the other, whether such claim or right arises under statute or otherwise, including the right to administer the estate of the other in the event of the death of that party". The husband died without ever revoking or changing the provisions of his will, which named the wife as residuary beneficiary. At the time of the divorce, there was no legislation that revoked a will upon dissolution of a marriage. At issue was whether the separation agreement released and waived any right to inherit under the will, notwithstanding that the will remained valid.

The Nova Scotia Supreme Court, in a judgment reported (2008), 269 N.S.R.(2d) 58; 860 A.P.R. 58, held that while the wife may have waived any claim to the husband's estate if he revoked or altered his will, the separation agreement lacked the clarity to waive her claim under the will if the husband chose not to alter his will to remove her as a beneficiary. Although a separation agreement could include a clear waiver of the parties' right to inherit under each other's wills, such intention was not clearly expressed in the agreement absent any reference to their respective "wills". The wife's right to claim against her former husband's estate was distinct from the husband's right to confer a benefit on her voluntarily. The failure to revoke or alter his will expressed an intention to benefit his former wife. Such result was consistent with ss. 22 and 23 of the Wills Act. The husband's mother appealed.

The Nova Scotia Court of Appeal dismissed the appeal on the ground that "the appellant has failed to produce any legal authority that a contractual promise to renounce, given for consideration before the death of a former spouse, binds a person to renounce a testamentary gift after his death".

Contracts - Topic 9000

Rights and liabilities of strangers to contract - General - Privity of contract - [See Wills - Topic 1110 ].

Releases - Topic 4124

Operation - Interests released - Wife's claim against husband's estate - Effect of - [See Wills - Topic 1110 ].

Wills - Topic 1110

Donees - Disclaimer or renunciation by donee - Contractual promise to renounce - Spouses divorced in 2007 after six years' marriage - A 2007 separation agreement provided that each spouse renounced and waived "any claim in the estate of the other and any right to share in the estate of the other, whether such claim or right arises under statute or otherwise, including the right to administer the estate of the other in the event of the death of that party" - The husband died without revoking or altering his will, which named the wife as residuary beneficiary - At the time of the divorce, a will was not revoked by the dissolution of a marriage - At issue was whether the separation agreement released and waived any right to inherit under the will, notwithstanding that the will remained valid - The trial judge held that while the wife may have waived any claim to the husband's estate if he revoked or altered his will, the separation agreement lacked the clarity to waive her claim under the will if the husband chose not to alter his will to remove her as a beneficiary - Although a separation agreement could include a clear waiver of the parties' right to inherit under each other's wills, such intention was not clearly expressed in the agreement absent any reference to their respective "wills" - The wife's right to claim against her former husband's estate was distinct from the husband's right to confer a benefit on her voluntarily - The failure to revoke or alter his will expressed an intention to benefit his former wife - Such result was consistent with ss. 22 and 23 of the Wills Act - The Nova Scotia Court of Appeal affirmed the result, but for different reasons - The wife, by executing the separation agreement for valuable consideration, did not contractually bind herself to renounce any inheritance under her husband's will - The court stated that "the appellant has failed to produce any legal authority that a contractual promise to renounce, given for consideration before the death of a former spouse, binds a person to renounce a testamentary gift after his death" - Further, there was no privity of contract between the wife and the husband's mother (executrix) that would permit the mother to enforce the separation agreement.

Wills - Topic 2335

Revocation - By act of testator - By agreement - [See Wills - Topic 1110 ].

Cases Noticed:

Billing v. Rideout Estate et al. (1993), 109 Nfld. & P.E.I.R. 271; 343 A.P.R. 271; 1993 CarswellNfld 71 (Nfld. T.D.), dist. [para. 12].

Eccleston Estate, Re (1999), 221 N.B.R.(2d) 295; 567 A.P.R. 295; 1999 CarswellNB 534 (Q.B.), dist. [para. 12].

Pearson v. Pearson Estate (1980), 3 Man.R.(2d) 404 (C.A.), refd to. [para. 12].

Townson v. Tickell (1819), 3 B. & Ald. 31; 106 E.R. 574, refd to. [para. 25].

Wolfson Estate, Re, [2005] O.T.C. Uned. B61; 22 E.T.R.(3d) 255 (Sup. Ct.), refd to. [para. 26].

Smith, Re, [2001] 3 All E.R. 552 (Ch.), refd to. [para. 28].

Biderman v. Minister of National Revenue (2000), 253 N.R. 236; 2000 D.T.C. 6149 (F.C.A.), refd to. [para. 29].

Tailby v. Official Receiver (1888), 13 App. Cas. 523 (H.L.), refd to. [para. 36].

Assh v. Canada (Attorney General) (2006), 356 N.R. 263; 274 D.L.R.(4th) 633; 2006 FCA 358, dist. [para. 38].

Cook's Will, Re (1926), 244 N.Y. 63; 154 N.E. 823 (Ct. App.), dist. [para. 40].

Ginsburg Estate, Re (1988), 142 Misc.2d 192; 536 N.Y.S.2d 649 (Surr. Ct.), dist. [para. 40].

Prime Estate, Re (2000), 184 Misc.2d 796; 710 N.Y.S.2d 810 (Surr. Ct.), dist. [para. 40].

Counsel:

Timothy Matthews, Q.C., for the appellant;

David Grant, for the respondents.

This appeal was heard on September 9, 2009, at Halifax, N.S., before Saunders, Oland and Fichaud, JJ.A., of the Nova Scotia Court of Appeal.

On December 10, 2009, Oland, J.A., delivered the following judgment for the Court of Appeal.