Phillips Estate, Re, (1995) 140 N.S.R.(2d) 213 (SC)

• Judge: Nathanson, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: February 01, 1995
• Jurisdiction: Nova Scotia
• Citations: (1995), 140 N.S.R.(2d) 213 (SC)

Phillips Estate, Re (1995), 140 N.S.R.(2d) 213 (SC);

  399 A.P.R. 213

MLB headnote and full text

In The Matter Of The Estate of the late Meryl Ernest Phillips, deceased and In The Matter Of an Application by Roland Edwards, Executor of the Estate of the late Meryl Ernest Phillips for interpretation of the will of Meryl Ernest Phillips.

(1994 S.H. No. 112255)

Indexed As: Phillips Estate, Re

Nova Scotia Supreme Court

Nathanson, J.

March 10, 1995.

Summary:

A testator completed a form will that raised several questions. The executor applied for an interpretation of the will to resolve the questions raised.

The Nova Scotia Supreme Court answered the several questions.

Wills - Topic 4146

Failure of gifts - Implied revocation, ademption - What constitutes an ademption - A testator left his car to his granddaughter - The car was destroyed in a car accident in which the testator died - The Nova Scotia Supreme Court held that there was an ademption and that the insur­ance proceeds from the destruction of the car should form part of the residue of the estate (see paragraphs 11 and 12).

Wills - Topic 5001

Construction - General principles - The Nova Scotia Supreme Court referred to the rules of construction that a judge ought to follow in determining the intention of a testator (see paragraphs 9 and 10).

Wills - Topic 5203

Construction - Practice - Jurisdiction - A testator directed the payment of several annuities out of the capital of his estate - The executor applied for leave to buy annuities from an insurance company so that the estate could be closed - The Nova Scotia Supreme Court granted leave - The court stated that such jurisdiction has been exercised in the past without relying on statutory authority, such as, the Variation of Trusts Act (see paragraphs 19 and 20).

Wills - Topic 7300

Construction, quantity of interest taken - Absolute interest - Absolute gift, effect of subsequent words - A testator purported to convey the residue of his estate and then later in the will made specific bequests - The Nova Scotia Supreme Court held that the specific bequests were valid - The court found that it was the intention of the testa­tor to bequeath the specific legacies des­pite the prior gift of the residue (see para­graphs 16 and 17).

Wills - Topic 7301

Construction, quantity of interest taken - Absolute interest - Absolute gift, with restriction on alienation - A testator pur­ported to devise an absolute interest in a condominium followed by the words "and at the expiration of thirty years she may sell" - The Nova Scotia Supreme Court held that the subsequent condition was an attempt to restrict alienation of an absolute gift and was void (see paragraphs 13 and 14).

Cases Noticed:

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. 9].

Kirk, Re (1956), 2 D.L.R.(2d) 527 (Ont. H.C.), refd to. [para. 9].

Richardson et al. v. Davies (1862), 143 E.R. 28, refd to. [para. 10].

Harmer, Re (1963), 40 D.L.R.(2d) 825 (Ont. H.C.), refd to. [para. 10].

Gordis, Re (1930), 38 O.W.N. 317 (H.C.), refd to. [para. 11].

Hunter, Re (1975), 8 O.R.(2d) 399 (Ont. H.C.J.), refd to. [para. 11].

Ross, Re, [1976] 3 W.W.R. 465 (B.C.S.C.), refd to. [para. 11].

Re Rosher; Rosher v. Rosher (1884), 26 Ch.D. 801, refd to. [para. 14].

Blackburn et al. v. McCallum (1903), 33 S.C.R. 65, refd to. [para. 14].

Cook v. Nova Scotia (1982), 53 N.S.R.(2d) 87; 109 A.P.R. 87 (T.D.), refd to. [para. 15].

Kotowski Estate, Re (1987), 49 Man.R.(2d) 284 (Q.B.), refd to. [para. 18].

Harbin v. Masterman, [1895] 1 Ch. 351 (C.A.), refd to. [para. 20].

Allen et al. v. Montreal Trust Co. and McClellan, [1978] 1 W.W.R. 462 (Sask. C.A.), refd to. [para. 20].

Counsel:

Joseph S. Roza, proctor for the estate;

D. William MacDonald, for Debbie Phillips, residuary beneficiary.

This application was heard on February 1, 1995, in Chambers, before Nathanson, J., of the Nova Scotia Supreme Court, who delivered the following decision on March 10, 1995.