Peach Estate, Re, 2011 NSSC 74

• Judge: Murray, J.
• Court: Probate Court of Nova Scotia (Canada)
• Case Date: October 05, 2010
• Jurisdiction: Nova Scotia
• Citations: 2011 NSSC 74;(2011), 301 N.S.R.(2d) 226 (ProbCt)

Peach Estate, Re (2011), 301 N.S.R.(2d) 226 (ProbCt);

    953 A.P.R. 226

MLB headnote and full text

Temp. Cite: [2011] N.S.R.(2d) TBEd. AP.001

In The Estate of Thomas Allan Peach, deceased

(SYD 333360; Probate No. 21051; 2011 NSSC 74)

Indexed As: Peach Estate, Re

Nova Scotia Probate Court

Murray, J.

March 28, 2011.

Summary:

A clause in a will drafted in 1980 provided that the balance of the testator's estate was bequeathed to the Glace Bay General Hospital (GBGH). In the event that a new hospital was constructed, the capital was to be used toward the establishment of a kidney care unit dedicated to his parents' memory. In the event that this hospital ceased to exist, the balance of the estate was to be donated to the Salvation Army. In 1986, the GBGH was replaced by a new building in a new location in Glace Bay. The testator died in 2009. By then, the GBGH had been dissolved as a separate legal entity and was owned and operated by the Cape Breton District Health Authority (DHA). The hospital known as GBGH continued to function. At issue was who was entitled to the gift: the DHA, the GBGH Charitable Foundation or the Salvation Army.

The Nova Scotia Probate Court held that the testator intended to benefit the GBGH in its present form. As far as the will was concerned, the GBGH did not cease to exist. The DHA

was the rightful beneficiary.

Perpetuities - Topic 702

Rule against perpetuities - Application of rule in general - Determination of time of vesting - A clause in a will drafted in 1980 provided that the balance of the testator's estate was bequeathed to the Glace Bay General Hospital (GBGH) - In the event that a new hospital was constructed, the capital was to be used toward the establishment of a kidney care unit dedicated to his parents' memory - In the event that this hospital ceased to exist, the balance of the estate was to be donated to the Salvation Army - In 1986, the GBGH was replaced by a new building in a new location in Glace Bay - The testator died in 2009 - By then, the GBGH had been dissolved as a separate legal entity and was owned and operated by the Cape Breton District Health Authority (DHA) - The hospital known as GBGH continued to function - The Salvation Army argued that the bequest offended the rule against perpetuities because it was possible a kidney care unit might not be constructed within 21 years from the testator's death - The Nova Scotia Probate Court rejected the argument - The only condition placed by the testator was that the hospital continue to exist - It continued to exist - Therefore, the condition did not offend the rule - There were no words used by the testator that would suggest a delay or postponement of the gift, except if the hospital ceased to exist - Also, it was generally accepted that a charitable rule did not breach the rule and was exempt in that property could be donated to be held in trust indefinitely for a charitable purpose - See paragraphs 117 to 134.

Wills - Topic 3525

Charitable gifts - Vesting - Whether legatee ceased to exist or operate - A clause in a will drafted in 1980 provided that the balance of the testator's estate was bequeathed to the Glace Bay General Hospital (GBGH) - In the event that a new hospital was constructed, the capital was to be used toward the establishment of a kidney care unit dedicated to his parents' memory - In the event that this hospital ceased to exist, the balance of the estate was to be donated to the Salvation Army - In 1986, the GBGH was replaced by a new building in a new location in Glace Bay - The testator died in 2009 - By then, the GBGH had been dissolved as a separate legal entity and was owned and operated by the Cape Breton District Health Authority (DHA) - The hospital known as GBGH continued to function - At issue was who was entitled to the gift: the DHA, the GBGH Charitable Foundation or the Salvation Army - The Nova Scotia Probate Court held that the testator intended to benefit the GBGH in its present form - A new hospital was constructed - As far as the will was concerned, the GBGH did not cease to exist - The testator did not place any condition as to ownership, location or who was to operate the hospital - The DHA was the rightful beneficiary as the successor of the GBGH - It had the ability and decision making power to accept the bequest and carry out the testator's intention - See paragraphs 43 to 112 and 138 to 148.

Wills - Topic 8003

Construction - Conditional gifts - General principles - Intention of testator - [See Wills - Topic 3525 ].

Cases Noticed:

Skerrett v. Bigelow Estate (2001), 195 N.S.R.(2d) 386; 609 A.P.R. 386; 2001 NSSC 116, refd to. [para. 34].

Mitchell Estate v. Mitchell Estate (2003), 219 N.S.R.(2d) 118; 692 A.P.R. 118; 2003 NSSC 223, affd. (2004), 228 N.S.R.(2d) 295; 723 A.P.R. 295 (C.A.), refd to. [para. 37].

Murray Estate, Re (2001), 191 N.S.R.(2d) 63; 596 A.P.R. 63 (C.A.), refd to. [para. 39].

Haidl et al. v. Sascher et al., [1980] 1 W.W.R. 293; 2 Sask.R. 93 (C.A.), refd to. [para. 39].

Saunders Estate, Re (2005), 236 N.S.R.(2d) 16; 749 A.P.R. 16 (T.D.), refd to. [para. 40].

Morgan's Trust, Re (1949), M. 2612, refd to. [para. 43].

Butler Estate, Re (2007), 268 Nfld. & P.E.I.R. 137; 813 A.P.R. 137; 2007 NLTD 105, refd to. [para. 63].

Ross Estates, Re; Charlotte County Hospital v. St. Andrews (Town) (1980), 28 N.B.R.(2d) 611; 63 A.P.R. 611; 1980 CarswellNB 6, refd to. [para. 68].

Fort Sackville Foundation v. Darby Estate (2010), 287 N.S.R.(2d) 158; 912 A.P.R. 158 (Prob. Ct.), refd to. [para. 73].

Leer Estate, Re (2005), 264 Sask.R. 131; 2005 SKQB 276, refd to. [para. 87].

Van Den Hurk Estate v. Crowther Estate et al., [2006] B.C.T.C. 978; 2006 BCSC 978, refd to. [para. 97].

Van Den Hurk (Administrator) v. British Columbia Rehabilitation Foundation - see Van Den Hurk Estate v. Crowther Estate et al.

Machin, Re (1979), 9 Alta. L.R.(2d) 296 (S.C.), refd to. [para. 101].

Purola Estate, Re (2004), 247 Sask.R. 148; 2004 SKQB 138, dist. [para. 121].

Oldelberg Estate, Re (1970), 72 W.W.R.(N.S.) 567 (Sask. Dist. Ct.), refd to. [para. 122].

Silver v. Fulton, 2011 NSCC 127, refd to. [para. 125].

Gray Estate, Re, 1999 CanLII 6045 (B.C.S.C.), refd to. [para. 136].

Authors and Works Noticed:

Feeney, Thomas G., The Canadian Law of Wills (4th Ed. 2000), generally [paras. 35, 115].

Moynihan, Cornelius J., Introduction of Real Property (1977), p. 204 [para. 117].

Tudor on Charities (6th Ed. 1967), p. 148 [para. 131].

Counsel:

G. Wayne Beaton, Q.C., and Paul Chaission, for the Estate;

Eric Durnford, Q.C., for the Glace Bay General Hospital Charitable Foundation;

Gary Corsano and Robert Risk, for the Cape Breton District Health Authority;

Kimberly A. McCurdy, for the Salvation Army in Canada.

This matter was heard on October 5, 2010, in Sydney, Nova Scotia, before Murray, J., of the Nova Scotia Probate Court, who delivered the following judgment on March 28, 2011, and the written decision on March 31, 2011.