Murphy Estate, Re, (1998) 170 N.S.R.(2d) 1 (Prob.)

Judge:Hall, J.
Court:Nova Scotia Probate Court
Case Date:September 16, 1998
Jurisdiction:Nova Scotia
Citations:(1998), 170 N.S.R.(2d) 1 (Prob.)
 
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Murphy Estate, Re (1998), 170 N.S.R.(2d) 1 (Prob.);

    515 A.P.R. 1

MLB headnote and full text

Temp. Cite: [1998] N.S.R.(2d) TBEd. SE.014

In The Estate Of Mary Frances Murphy late of Antigonish, in the County of Antigonish, in the Province of Nova Scotia, deceased;

And In The Matter Of Citation to attend Proof of Will in Solemn Form

Indexed As: Murphy Estate, Re

Nova Scotia Probate Court

Hall, J.

September 16, 1998.

Summary:

Murphy died. Her executor applied for proof in solemn form of Murphy's will. The principal issues were whether the apparent alterations to the will were made after the execution of the will, and if so, whether Murphy's son William should succeed to Murphy's cottage property by virtue of a resulting or constructive trust.

The Nova Scotia Probate Court held that the alterations were made after the execution of the will and there was no resulting or constructive trust respecting the cottage property.

Trusts - Topic 1907

Resulting trusts - General principles - Circumstances when not imposed - Para­graph two of the testator's will originally provided "Cottage and land at Bayfield Ant. Co. to Judith Ann Grannan" - That provision was altered by lines running through the name "Judith Ann Grannan" and the addition of the name "Wm. F. Murphy" following "Judith Ann Grannan" - The testator's initials appeared in the margin, but they were not witnessed - The Nova Scotia Probate Court held that the alterations were made after the will was executed and therefore were of no force and effect - The court rejected the asser­tion that Grannan held the property for her brother William Murphy by way of a resulting or constructive trust - The court held, inter alia, that there was no uncon­scionable unjust enrichment - See para­graphs 42 to 60.

Trusts - Topic 2310

Constructive trusts - General principles - Circumstances when not imposed - [See Trusts - Topic 1907 ].

Trusts - Topic 2346

Constructive trusts - Basis for imposition - Unjust enrichment - [See Trusts - Topic 1907 ].

Wills - Topic 1744

Preparation and execution - Alterations and deletions - Validity of - Murphy died - At issue was whether apparent alter­ations made to her will were made after it was executed - The Nova Scotia Probate Court held that the presumption that the alterations to the will were made after its execution was not rebutted - Therefore, the alterations were of no force and effect - See paragraphs 1 to 41.

Wills - Topic 5183

Construction - General - Evidence and proof - Intention of testator - A will originally provided "Cottage and land at Bayfield Ant. Co. to Judith Ann Grannan" - That provision was altered by lines running through the name "Judith Ann Grannan" and the addition of the name "Wm. F. Murphy" (William) following "Judith Ann Grannan" - The testator's initials appeared in the margin, but they were not witnessed - At issue was whether the alterations were made after the will's execution, and if so, whether William should succeed to the cottage property by virtue of a resulting or constructive trust - The Nova Scotia Probate Court held that evidence of statements made by the testa­trix after the apparent date of execution were inadmissible to establish the terms of the will, but admissible respecting the trust arguments - See paragraphs 25 to 33.

Wills - Topic 8546

Evidence and proof - Extrinsic evidence - Of intention of testator - [See Wills - Topic 5183 ].

Cases Noticed:

Doe d. Shallcross v. Palmer (1851), 16 Q.B. 747, refd to. [para. 33].

Jessop, Re, [1924] P. 221, refd to. [para. 33].

Oates, In The Estates of, Callow v. Sutton, [1946] 2 All E.R. 735, refd to. [para. 33].

Dreger Estate, Re (1994), 97 Man.R.(2d) 39; 79 W.A.C. 39; 5 E.T.R.(2d) 250 (C.A.), dist. [para. 43].

Jankowski v. Pelek Estate (1995), 107 Man.R.(2d) 167; 109 W.A.C. 167; 131 D.L.R.(4th) 717 (C.A.), dist. [para. 43].

Soulos v. Korkontzilas et al., [1997] 2 S.C.R. 217; 212 N.R. 1; 100 O.A.C. 241; 146 D.L.R.(4th) 214, dist. [para. 43].

Becker v. Pettkus, [1980] 2 S.C.R. 834; 34 N.R. 384; 117 D.L.R.(3d) 257, refd to. [para. 51].

Authors and Works Noticed:

Feeney, Thomas G., The Canadian Law of Wills (3rd Ed. 1987), vol. 1, p. 131 [para. 40].

Macdonell, Sheard and Hull, Probate Prac­tice (3rd Ed. 1981), p. 74 [paras. 31, 39].

Phipson, The Law of Evidence (12th Ed. 1976), paras. 1017, 1018 [para. 32].

Counsel:

Peter Bryson, for William F. Murphy, Q.C.;

Harry R.G. Munro, for Judith Grannan;

Gerald A. MacDonald, for David Murphy;

T. William Gorman, for Bernice Grant;

Mary Dorothea Hynes, on her own behalf;

Duncan J. Chisholm, for the Executor.

This application was heard on June 16 and 17, 1998, at Pictou, Nova Scotia, by Hall, J., of the Nova Scotia Probate Court, who delivered the following judgment on Sep­tember 16, 1998.

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