Court of Appeal

Decision Information

Hemphill Estate v. Hemphill

Court Court of Appeal
Date 1998-06-18
Citation 1998 NSCA 119
Docket CA 144042
Judge/Registrar/Adjudicator Hallett, J. Doane (Honourable Justice) (CA); Bateman, Nancy J. (Honourable Justice) (CA); Flinn, Edward J. (Honourable Justice)
Document Type Decision
Relations Library Sheet - Hemphill Estate v. Hemphill - 1998 NSCA 119 - 1998-06-18 - Library Sheet

Decision Content

Date:         19980618                                                                   Docket:  C.A.    144042

 

 

                                        NOVA SCOTIA COURT OF APPEAL

                          Cite as: Hemphill Estate v. Hemphill, 1998 NSCA 119

                                          Bateman, Hallett and Flinn, JJ.A.

 

BETWEEN:

 

THE ESTATE OF JEAN HEMPHILL, by the   )         Hector J. MacIsaac

Guardian MARGARET McINNIS                                 )          for the Appellant

)

Appellant         )

)

- and -                                                 )

)        Thomas W. Jarmyn

)          for the Respondent

ALDRICH HEMPHILL                                                   )

)

Respondent         )        Appeal Heard:

)           June 18, 1998

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)        Judgment Delivered:

)            June 18, 1998

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THE COURT:     Appeal dismissed per oral reasons for judgment of Flinn, J.A.; Hallett and Bateman, JJ.A. concurring.

FLINN, J.A.: 

This is an appeal from the decision of Justice MacLellan of the Supreme Court of Nova Scotia. Justice MacLellan denied the appellant’s application for a declaration of nullity of the marriage of Jean Hemphill and Aldrich Hemphill.  The appellant’s submission on the hearing of the application was that on the date of the marriage, December 10th, 1993, Jean Hemphill was incompetent.

 

In denying the appellant’s application the trial judge said:

I am not satisfied based on the evidence I have heard or the exhibits introduced that at the time of the marriage, that is, December 10th, 1993, Jean Hemphill was incompetent.  A person is presumed to be competent until proven otherwise.  I appreciate the difficulties involved in attempting to prove that issue at this time, however, that is the burden the applicant must meet.

 

 

In concluding that the appellant had not established, on a balance of probabilities, that at the time of her marriage Mrs. Hemphill was unable to appreciate the nature and quality of the marriage contract, the trial judge made no palpable or overriding error.  There is, therefore, no basis for this Court to interfere with that conclusion. (see Toneguzzo-Norvell v. Burnaby Hospital, [1994] 1 S.C.R. 114 (S.C.C.)). 

 

The appeal is dismissed.  The appellant will pay to the respondent his costs of this appeal which are fixed at $1,000.00 inclusive of disbursements.

 

 

 

Flinn, J.A.

Concurred in:

Hallett, J.A.

Bateman, J.A.

 

 

 

 

                                                                    C.A. No.144042

                                                                                                

 

                      NOVA SCOTIA COURT OF APPEAL

 

                                               

BETWEEN:

 

THE ESTATE OF JEAN HEMPHILL,

by the Guardian MARGARET McINNIS       )

)

Appellant         )

- and -                                                        )       REASONS FOR

)       JUDGMENT BY:

ALDRICH HEMPHILL                                  )

)       FLINN, J.A.

)         (Orally)

Respondent     )

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