Thibault Estate, Re, 2009 NSSC 4

Judge:Duncan, J.
Court:Nova Scotia Probate Court
Case Date:December 03, 2008
Jurisdiction:Nova Scotia
Citations:2009 NSSC 4;(2009), 272 N.S.R.(2d) 371 (ProbCt)
 
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Thibault Estate, Re (2009), 272 N.S.R.(2d) 371 (ProbCt);

    869 A.P.R. 371

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Temp. Cite: [2009] N.S.R.(2d) TBEd. JA.012

In The Matter Of: The Estate of Thomas Edward Thibault, Deceased

(SD303849; 2009 NSSC 4)

Indexed As: Thibault Estate, Re

Nova Scotia Probate Court

Duncan, J.

January 6, 2009.

Summary:

Thibault executed a will in 1999. He appointed Doucette, his then wife, to be the sole executrix and only beneficiary of his estate. Thibault and Doucette divorced in 2003. Thibault was killed in an accident on September 8, 2008, 20 days after s. 19A of the Wills Act came into force. Section 19A changed the capacity of a divorced spouse to serve as the personal representative, or to be a beneficiary, of their former spouse's estate. If s. 19A operated retroactively or retrospectively, it would deem Doucette to have predeceased Thibault, eliminating her as his executrix and beneficiary. Doucette applied for a determination of whether s. 19A operated retroactively or retrospectively.

The Nova Scotia Probate Court held that s. 19A had to be read prospectively. Doucette was therefore entitled to continue to act as the executrix of Thibault's estate and to benefit from the estate in accordance with the terms of his will.

Statutes - Topic 6704

Operation and effect - Commencement, duration and repeal - Retrospective and retroactive enactments - Presumption against retrospectivity and retroactivity - [See Statutes - Topic 6744 ].

Statutes - Topic 6744

Operation and effect - Commencement, duration and repeal - Prospective enactments - What constitutes - Thibault executed a will in 1999 - He appointed Doucette, his then wife, to be the sole executrix and only beneficiary of his estate - Thibault and Doucette divorced in 2003 - Thibault was killed in an accident on September 8, 2008, 20 days after s. 19A of the Wills Act came into force - Section 19A changed the capacity of a divorced spouse to serve as the personal representative, or to be a beneficiary, of their former spouse's estate - If s. 19A operated retroactively or retrospectively, it would deem Doucette to have predeceased Thibault, eliminating her as his executrix and beneficiary - The Nova Scotia Probate Court held that s. 19A had to be read prospectively - Such a conclusion was consistent with the general presumption that legislation should not be read retrospectively except where by clear language or necessary implication it should so operate - The language of the Act was clear and unambiguous, and there was no external evidence to suggest that the legislature intended a contrary conclusion - In the result, Doucette was entitled to continue to act as the executrix of Thibault's estate and to benefit from the estate in accordance with the terms of his will.

Cases Noticed:

MacKenzie v. Commissioner of Teachers' Pensions (B.C.) (1992), 15 B.C.A.C. 69; 27 W.A.C. 69; 69 B.C.L.R.(2d) 227 (C.A.), refd to. [para. 9].

Workers' Compensation Board (N.S.) v. Muise (1998), 170 N.S.R.(2d) 253; 515 A.P.R. 253 (C.A.), consd. [para. 11].

Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, [1977] 1 S.C.R. 271; 7 N.R. 401, refd to. [para. 11].

Matejka Estate, Re, [1984] B.C.J. No. 1945 (C.A.), consd. [para. 18].

Page Estate v. Sachs (1993), 61 O.A.C. 122 (C.A.), consd. [para. 21].

Statutes Noticed:

Wills Act, R.S.N.S. 1989, c. 505, sect. 19A [para. 7].

Authors and Works Noticed:

Nova Scotia, Law Reform Commission, Reform of the Nova Scotia Wills Act, Discussion Paper (2003), generally [para. 15].

Nova Scotia, Law Reform Commission, Reform of the Nova Scotia Wills Act, Final Report (2003), generally [para. 15].

Ontario, Law Reform Commission, Report on the Impact of Divorce on Existing Wills (1977), p. 10 [para. 22].

Counsel:

Gregory Barro, for Shirley Doucette, Executrix.

This application was heard on December 3, 2008, at Digby, N.S., before Duncan, J., of the Nova Scotia Probate Court, who delivered the following decision on January 6, 2009.

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