Oliphant Estate, Re, (1990) 84 Sask.R. 44 (SurCt)

• Judge: Grotsky, J.
• Case Date: May 08, 1990
• Jurisdiction: Saskatchewan
• Citations: (1990), 84 Sask.R. 44 (SurCt)

Oliphant Estate, Re (1990), 84 Sask.R. 44 (SurCt)

MLB headnote and full text

In The Matter Of the Estate of William Everett Oliphant George Oliphant (applicant) v. Elise Wickson and Margot Wickson, as Administrators of the Estate of William Everett Oliphant and Elise Wickson and Margot Wickson (respondents)

(No. 93 A.D. 1988)

Indexed As: Oliphant Estate, Re

Saskatchewan Surrogate Court

Judicial Centre of Humboldt

Grotsky, J.

May 8, 1990.

Summary:

The issue in this case, decided under rules 57 and 188 of the Surrogate Court and Queen's Bench Rules, respectively, concerned whether the testator's natural daughters, who had been adopted under British Columbia law prior to his death, could inherit the realty or personalty of his estate.

The Saskatchewan Surrogate Court held that the testator's natural daughters could not inherit his realty situated in Saskatchewan. The court declined jurisdiction respecting whether the testator's personalty could be inherited by his natural daughters.

Conflict of Laws - Topic 6062

Succession - Intestacy - Choice of law - The Saskatchewan Surrogate Court stated that at common law, the succession to the immoveables of an intestate was governed by the law of the place where the immoveables were situated (the law of the lex situs) - At common law, the succession to the moveables of an intestate was governed by the law of his domicile at the time of his death - See paragraphs 5 to 6.

Devolution of Estates - Topic 446

Devolution - Children - Effect of adoption - An intestate domiciled in Alberta died there, leaving, inter alia, realty in Saskatchewan - Years before, his natural children had been adopted under British Columbia law by parents domiciled in B.C. - Applying the lex situs (Saskatchewan), specifically the Family Services Act (Sask.), the Saskatchewan Surrogate Court held that the adopted children ceased for all purposes to be the intestate's natural children and were accordingly not his "issue" under the Intestate Succession Act (Sask.) and could not inherit his realty in Saskatchewan - The court held that the Intestate Succession Act did not determine the issue of status to inherit an estate - See paragraphs 5, 11 to 33.

Devolution of Estates - Topic 446

Devolution - Children - Effect of adoption - An intestate domiciled in Alberta died there, leaving personalty in both Alberta and Saskatchewan - Years before, his natural children had been adopted under British Columbia law by parents domiciled in B.C. - The Saskatchewan Surrogate Court held that since the issue of status to inherit the personalty was governed by the law of the intestate's domicile (Alberta), the court lacked jurisdiction to rule on the right of the adopted children to inherit personalty from the intestate - See paragraphs 6 to 9, 35.

Family Law - Topic 1674

Adoption - Effect of - On inheritance rights - [See both Devolution of Estates - Topic 446].

Statutes - Topic 6255

Operation and effect - Effect on earlier statutes - Contrariety or conflict between statutes - General and special statutes - The Saskatchewan Surrogate Court held that the Family Services Act, a special law, overrode the Intestate Succession Act, a law of general application - See paragraphs 25 to 27.

Words and Phrases

For all purposes - The Saskatchewan Surrogate Court discussed the meaning of the phrase "for all purposes", as found in s. 60(2)(b) of the Family Services Act, R.S.S. 1978, c. F-7 - See paragraphs 19, 28 to 33.

Cases Noticed:

Palmer v. Palmer, [1980] 2 W.W.R. 557; 2 Sask.R. 112, refd to. [para. 9].

Williams v. Moody Bible Institute of Chicago, [1937] 2 W.W.R. 316 (Sask. C.A.), refd to. [para. 9].

Guaranty Trust Company of Canada v. Lindberg and Government of Saskatchewan (1983), 29 Sask.R. 149 (Q.B.), refd to. [para. 12].

Purcell v. Hendricks and Marks et al., [1925] 2 W.W.R. 689 (B.C.C.A.), refd to. [para. 13].

Re Kowbel Estate, [1984] 1 W.W.R. 47; 27 Sask.R. 65; 36 R.F.L.(2d) 391, not appld. [para. 22].

Mernickle v. Westaway, [1986] 3 W.W.R. 665 (B.C.C.A.), refd to. [para. 22].

Trombley Estate v. Rachow (1988), 67 O.R.(2d) 35 (S.C.), dist. [para. 22].

Podolsky's Estate, Re (1980), 3 Man.R.(2d) 251; 111 D.L.R.(3d) 159 (C.A.), dist. [para. 22].

Huston v. Ash and Webster and Public Trustee of Manitoba, [1985] 2 W.W.R. 634 (Man. C.A.), dist. [para. 22].

Massicotte v. Boutin (1969), 13 D.L.R.(3d) 640 (S.C.C.), refd to. [para. 26].

Re Wellsted's Will Trusts; Wellsted v. Hanson, [1949] Ch. 296, refd to. [para. 30].

Queen, The v. The County Council Of The West Riding of Yorkshire, [1895] 1 Q.B. 805, refd to. [para. 31].

Statutes Noticed:

Adoption Act, R.S.B.C. 1979, c. 4, sect. 11(1), sect. 11(2) [paras. 15-16].

Child Welfare Act, R.S.A. 1980, c. C-8, sect. 57(1), sect. 57(2) [paras. 15, 18].

Family Services Act, R.S.S. 1978, c. F-7, generally [paras. 27-29]; sect. 60(1), sect. 60(2)(a), sect. 60(2)(b) [paras. 15, 19, 23].

Intestate Succession Act, R.S.S. 1978, c. I-13, generally [paras. 25, 27, 19]; sect. 2(b), sect. 5 [para. 23].

Law and Equity Act, R.S.B.C. 1979, c. 224, sect. 56(1)(a) [para. 15, 17].

Authors and Works Noticed:

Dicey, Conflict of Laws (11th Ed.), p. 1005, rule 137 [para. 6]; p. 1007, rule 138 [para. 5].

Halsbury's Laws of England (4th Ed.), vol. 8, p. 453, para. 676 [paras. 5-6].

Counsel:

W.G. Turnbull, for the applicant;

B.C. Valkenburg, for the respondents.

This case was heard before Grotsky, J., of the Saskatchewan Surrogate Court, Judicial Centre of Humboldt, whose decision was delivered on May 8, 1990.