Murphy Estate, Re, (1998) 169 N.S.R.(2d) 284 (SC)

• Judge: Davison, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: July 21, 1998
• Jurisdiction: Nova Scotia
• Citations: (1998), 169 N.S.R.(2d) 284 (SC)

Murphy Estate, Re (1998), 169 N.S.R.(2d) 284 (SC);

    508 A.P.R. 284

MLB headnote and full text

Temp. Cite: [1998] N.S.R.(2d) TBEd. AU.036

In The Matter Of the Probate Court Act;

And In The Matter Of Henry John  Murphy, Deceased.

(S.H. 134681)

Indexed As: Murphy Estate, Re

Nova Scotia Supreme Court

Davison, J.

July 21, 1998.

Summary:

Henry Murphy died in 1995 leaving his estate (except for a couple of personal items) to be divided equally between his children, Walter, Mary and Meta. Walter contended that Henry gave a gift of $50,000 to him and his wife Janette in the year before he died and claimed the $50,000 from Henry's Estate. Mary opposed the claim.

The Nova Scotia Supreme Court held that Walter and Janette were entitled to the $50,000. The $50,000 was a valid gift inter vivos and if it was not a gift inter vivos, then it was a donatio mortis causa.

Gifts - Topic 501

Gifts inter vivos - Gift inter vivos - Defined - [See Gifts - Topic 1644 ].

Gifts - Topic 1502

Gifts mortis causa - Gift mortis causa - Defined - [See Gifts - Topic 1644 ].

Gifts - Topic 1644

Gifts mortis causa - Validity - Particular types of property - Money - Henry Murphy died in 1995 leaving his estate (except for a couple of personal items) to be divided equally between his children, Walter, Mary and Meta - Walter claimed that in the year before his death, Henry asked Walter and his wife Janette to take $50,000 and place it in a safety deposit box (which he did) and when Henry passed away the money belonged to them - The money was for the care given to Henry by Walter and Janette and Henry told them not to say anything about the money until he died - Walter and Janette claimed the $50,000 from Henry's Estate - The Nova Scotia Supreme Court held that Walter and Janette were entitled to the $50,000 - The court accepted Walter and Janette's evidence and there was suffi­cient corroborating evidence - The $50,000 was a valid gift inter vivos and if it was not a gift inter vivos, then it was a donatio mortis causa.

Cases Noticed:

Johnson v. Nova Scotia Trust Co. et al. (1973), 6 N.S.R.(2d) 88 (C.A.), refd to. [para. 20].

Ryan v. Whitton, [1963] 1 O.R. 97 (H.C.), refd to. [para. 20].

Shaw v. MacKenzie Estate (1994), 131 N.S.R.(2d) 118; 371 A.P.R. 118 (S.C.), refd to. [para. 21].

Samson Estate v. Tanner (1984), 66 N.S.R.(2d) 119; 152 A.P.R. 119 (C.A.), refd to. [para. 21].

MacCarthy, Re (1970), 16 D.L.R.(3d) 72 (N.S. Prob. Ct.), refd to. [para. 22].

Ward v. Ward Estate (1985), 70 N.S.R.(2d) 219; 166 A.P.R. 219 (Co. Ct.), refd to. [para. 23].

Lands Estate v. Sonnwald (1986), 22 E.T.R. 282 (Ont. H.C.), refd to. [para. 24].

Radford v. MacDonald (1891), 18 O.A.R. 167 (C.A.), refd to. [apra. 24].

Fenton Estate, Re (1977), 26 N.S.R.(2d) 662; 40 A.P.R. 662 (T.D.), refd to. [para. 34].

Reid, Re (1921), 50 O.L.R. 595 (C.A.), refd to. [para. 34].

MacInnis Estate v. MacDonald (1994), 138 N.S.R.(2d) 321; 394 A.P.R. 321 (S.C.), refd to. [para. 38].

Goodman Estate v. Geffen, [1991] 2 S.C.R. 353; 127 N.R. 241; 125 A.R. 81; 14 W.A.C. 81; [1991] 5 W.W.R. 389; 81 D.L.R.(4th) 211; 80 Alta. L.R.(2d) 293; 42 E.T.R. 97, refd to. [para. 43].

Counsel:

Bernadette C. Maxwell and Michael O'Hara, for Walter And Janette Murphy;

Douglas W. Lutz and Dianne Rowe, for Mary Pickrem;

Roberta J. Clarke, Q.C., and Kim Johnson Proctor, for Meta Miles.

This matter was heard on May 25 and 26, 1998, at Halifax, Nova Scotia, before Davi­son, J., of the Nova Scotia Supreme Court, who delivered the following decision on July 21, 1998.