Murray Estate, Re, 2001 NSCA 25

• Judge: Freeman, Chipman and Oland, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: January 17, 2001
• Jurisdiction: Nova Scotia
• Citations: 2001 NSCA 25;(2001), 191 N.S.R.(2d) 63 (CA)

Murray Estate, Re (2001), 191 N.S.R.(2d) 63 (CA);

 596 A.P.R. 63

MLB headnote and full text

Temp. Cite: [2001] N.S.R.(2d) TBEd. FE.037

John Darrell Murray and Christine Mack, Beneficiaries of the Estate of John Douglas Murray (appellants)

John Darrell Murray, as Executor and Trustee of the Estate of John Douglas Murray and the Estate of John Douglas Murray (respondents)

(CA 165496; 2001 NSCA 25)

Indexed As: Murray Estate, Re

Nova Scotia Court of Appeal

Freeman, Chipman and Oland, JJ.A.

February 6, 2001.

Summary:

An executor and beneficiaries applied for the interpretation of a will.

The Nova Scotia Supreme Court, in a decision reported at 188 N.S.R.(2d) 147; 587 A.P.R. 147, interpreted the will and deter­mined the amount of costs. Two of the beneficiaries appealed.

The Nova Scotia Court of Appeal allowed the appeal.

Practice - Topic 8808

Appeals - General principles - Duty of appellate court respecting conclusions or interpretation of trial judge - A chambers judge interpreted a residual clause in a will - Two of the beneficiaries appealed - The Nova Scotia Court of Appeal noted that there were no credibility issues to be resolved by the chambers judge - The court held that, in these circumstances, it could evaluate the chambers judge's de­cision against the background of the record and the relevant law and, if satisfied that he had erred, substitute its own decision - See paragraphs 16 to 17.

Wills - Topic 7381

Construction - Quantity of interest taken - Concurrent gifts - When donees take per stirpes - Family distribution - A clause divided the residue of an estate "equally as follows" - Thereafter, the names of the testator's four children by his marriage, and then his housekeeper of 60 years, were set out, each on a separate line beginning with the word "To" - The sixth line began "To my friends" and named five more beneficiaries - They were the testator's two children by a woman to whom he was never married, and her three younger children from her subsequent marriage to another man - The chambers judge held that the testator chose to indicate indi­viduals and, therefore, wished to divide his estate equally between the 10 named bene­ficiaries - Two of the beneficiaries ap­pealed - The Nova Scotia Court of Appeal allowed the appeal - The circum­stances operated to displace the prima facie rule favouring a per capita construction for a per stirpital construction - The first five beneficiaries each took a one-sixth share and the last five beneficiaries shared a one-sixth share of the residue of the estate - See paragraphs 1 to 5.

Wills - Topic 7686

Construction - Quantity of interest taken - Residue - Determination of interest or share of one of several residuary legatees -[See Wills - Topic 7381 ].

Wills - Topic 8550

Evidence and proof - Extrinsic evidence - Of surrounding circumstances to interpret will - The Saskatchewan Court of Appeal, in a 1979 case, addressed whether the so-called "ordinary meaning" rule of testa­mentary construction should first be applied without admitting and taking into account surrounding circumstances unless its application produced a meaning which was unclear and ambiguous, or whether the law required the surrounding circumstances to be admitted at the start, and the "ordi­nary meaning" rule of construction applied in light of them - The Saskatchewan court preferred the latter approach as the one most likely to elicit the testator's intention - The Nova Scotia Court of Appeal, in obiter, also expressed a preference for admitting evidence of the surrounding circumstances from the start - See para­graphs 18 to 24.

Cases Noticed:

Tucker Estate, Re (1993), 92 Man.R.(2d) 41; 61 W.A.C. 41 (C.A.), refd to. [para. 16].

Haidl et al. v. Sacher et al., [1980] 1 W.W.R. 293; 2 Sask.R. 93 (C.A.), refd to. [para. 20].

Burke, Re (1959), 20 D.L.R.(2d) 396 (Ont. C.A.), refd to. [para. 22].

O'Brien, Re; Dalhousie University v. Dartmouth (City) and Dartmouth Hos­pital Commission (1978), 25 N.S.R.(2d) 262; 36 A.P.R. 262 (C.A.), refd to. [para. 24].

Authors and Works Noticed:

Feeney, Thomas G., Canadian Law of Wills (4th Ed.), paras. 10.45, 10.46 [para. 18]; 10.53 to 10.57 [para. 23].

Counsel:

Paul Thomas, for the appellants;

Colin M. Campbell, for the respondents;

Roberta Clarke, Q.C., for the executor.

This appeal was heard on January 17, 2001, by Freeman, Chipman and Oland, JJ.A., of the Nova Scotia Court of Appeal. Chipman, J.A., delivered the following decision for the Court of Appeal on February 6, 2001.