Court of Appeal

Judge:

The Honourable Justice David P.S. Farrar

Appeal Heard:

April 12, 2016, in Halifax, Nova Scotia

Subject:

Summary Judgment. Issue Estoppel. 

Summary:

The appellant, as the personal representative of the Estate of Margaret Anne Fawson, commenced action against the respondents, Sandra Marie Deveau and Patrick Joseph Fawson, for return of monies paid to them by various institutions as a result of Margaret Fawson having designated them as beneficiaries of various accounts she held and a death benefit.  The appellant then moved for summary judgment, relying on a previous decision of Justice Suzanne M. Hood in Re: Fawson Estate, 2012 NSSC 55.  In that proceeding, Justice Hood found that Margaret Fawson did not have testamentary capacity at the time of the execution of her Will on April 23, 2004.  She set aside the Will and revoked the grant of probate to Sandra Deveau.

In moving for summary judgment, the appellant’s argument was that if Margaret Fawson did not have testamentary capacity to execute a will, it followed that all of the beneficiary designations would be invalid as a result of the application of the principle of issue estoppel.

Justice Richard Coughlan dismissed the motion concluding that there was a genuine issue of fact to be determined, that is, the requisite capacity of Margaret Fawson at the time of executing the beneficiary designations. 

The appellant sought leave to appeal and, if granted, appealed on the basis that the motions judge erred in the application of the test for summary judgment. 

Issues:

(1)        Should leave to appeal be granted?

(2)        Did the motions judge improperly apply the test for summary judgment?

Result:

Leave to appeal granted.  Appeal dismissed.  The motions judge properly identified and applied the law with respect to summary judgment applications and the principle of issue estoppel.  He concluded that there was a material issue of fact in dispute.  In so finding he did not err.