Court of Appeal

                                NOVA SCOTIA COURT OF APPEAL

Citation:  Robinson v. Morrell Estate, 2009 NSCA 127

Date:  20091210

Docket: CA 305792

Registry: Halifax

Between:

Anne Robinson

Appellant

v.

Susan Elaine Ostrom, Executrix of the Estate of Ezra Morrell

Susan Elaine Ostrom, Walter Ostrom and Ingrid Ostrom

Respondents

Judge:                   The Honourable Justice Oland

Appeal Heard:      September 9, 2009

Final Submissions Received:    November 16, 2009

Subject:                Wills - Separation Agreements - Renunciation of Testamentary Gifts

Summary:             A couple signed a separation agreement which included a provision whereby they agreed to renounce and waive any claim in the estate of the other and any right to share in the estate of the other.  When they divorced, its terms were incorporated in the corollary relief judgement.  When he died, the former husband had not changed his will which left the residue to his former wife.  The Chambers judge held that the separation agreement did not revoke the will and accordingly, she was entitled to the testamentary gift.  The mother of the deceased appeals.

Issue:          Whether, before a testator’s death, a person can contractually obligate himself or herself to renounce a testamentary gift.

Result:                  Appeal dismissed.  The Chambers judge’s reasoning was flawed.  However, the appellant failed to produce any legal authority that a contractual promise to renounce, given for consideration before the death of a former spouse, binds a person to renounce a testamentary gift after his death.  Even if the former spouse were so bound, it does not appear that there is any privity of contract which would allow the appellant here, who was not a party to the separation agreement, to enforce the separation agreement.