Pictou Genealogy v. Darby Estate, (2011) 305 N.S.R.(2d) 99 (ProbCt)

Judge:Coughlan, J.
Court:Nova Scotia Probate Court
Case Date:June 15, 2011
Jurisdiction:Nova Scotia
Citations:(2011), 305 N.S.R.(2d) 99 (ProbCt);2011 NSSC 271
 
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Pictou Genealogy v. Darby Estate (2011), 305 N.S.R.(2d) 99 (ProbCt);

    966 A.P.R. 99

MLB headnote and full text

Temp. Cite: [2011] N.S.R.(2d) TBEd. JL.034

In the Estate of John Darby, deceased

Pictou County Genealogy & Heritage Society (applicant) v. Ross E. Hallett, in his capacity as Personal Representative and Trustee of the Estate of John Darby, deceased (respondent)

(Hfx. No. 337157; 56651; 2011 NSSC 271)

Indexed As: Pictou County Genealogy & Heritage Society v. Darby Estate

Nova Scotia Probate Court

Coughlan, J.

June 15, 2011.

Summary:

In his will, the deceased left one fourth of the residue of his estate to the "Heritage Society for Pictou County, Nova Scotia". There was no such Society. Prior to the execution of the will, there was a Pictou Heritage Society. The Pictou County Genealogy & Heritage Society (the Society), in existence at the time of the execution of the will, applied for an order declaring it to be a residual beneficiary of the estate. One of the persons entitled to the estate on an intestacy, opposed the application.

The Nova Scotia Probate Court allowed the application.

Wills - Topic 1397

Donees - Uncertainty as to donee - Description of donee - Misdescription - In his will, the deceased left one fourth of the residue of his estate to the "Heritage Society for Pictou County, Nova Scotia" - There was no such Society - Prior to the execution of the will, there was a Pictou Heritage Society - The Pictou County Genealogy & Heritage Society, in existence at the time of the execution of the will, applied for an order declaring it to be a residual beneficiary of the estate - The Nova Scotia Probate Court granted the application - The words "Heritage Society for Pictou County, Nova Scotia" was a misdescription of the Pictou County Genealogy & Heritage Society, the Society existing at the time the will was executed, whose objects dealt with the heritage of Pictou County, Nova Scotia - Alternatively, it was appropriate to apply the cy-près doctrine - The gift expressed the deceased had a general or overriding charitable intent, in that the gift was for the preservation of Scottish heritage in Pictou County.

Wills - Topic 3543

Charitable gifts - Cy-près doctrine - Circumstances when doctrine applied - [See Wills - Topic 1397 ].

Wills - Topic 3544

Charitable gifts - Cy-près doctrine - Requirement of general charitable purpose - [See Wills - Topic 1397 ].

Wills - Topic 5121

Construction - General - Misdescription of property or persons - [See Wills - Topic 1397 ].

Cases Noticed:

Kunze Estate, Re (2005), 263 Sask.R. 248; 2005 SKQB 212, refd to. [para. 20].

Authors and Works Noticed:

Feeney, Thomas G., The Canadian Law of Wills (4th Ed. 2000), s. 13.2 [para. 9].

Waters, Donovan W.M., The Law of Trusts in Canada (3rd Ed. 2005), pp. 765, 766 [para. 12]; 773 [para. 18].

Counsel:

Tim Hill, for the applicant;

Daniel Wallace, for the respondent Estate;

Jeffrey R. Hunt, for surviving relative, L. Zane Fraser.

This application was heard and decided in Chambers, on June 15, 2011, in Halifax, Nova Scotia, by Coughlan, J., of the Nova Scotia Probate Court. The following written decision was released on July 14, 2011.

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