Cite as: MacDonald v. Creelman, 1989 NSCA 3 I N THE SUPREME COURT OF APPEAL DIVISION Jones, Macdonald and Pace, BETWEEN: MARGARET MACDONALD 1 ) Appellant ) 1 - and - KATHLEEN JEANETTE 1 ) CREELMAN 1 Respondent i ) THE COURT: Appeal dismissed wi th c o s t s p e r oral reasons f o r judgment of Jones, Macdonald and Pace, J J . A . S.C.A. No. 01965 NOVA SCOTIA J J . A . R. Malcolm MacLeod f o r t h e appe l l an t Gerald P. Scanlan f o r t h e respondent Appeal Heard: January 23, 1989 Judgment Delivered : January 23, 1989 J . A . ; concurr ing.
The reasons for judgment were delivered orally
by:
JONES, J.A.:
This is an appeal from a decision of Mr.
Justice Davison dismissing the appellant's action for
a declaration that a deed given by the appellant to
the respondent was void. The appellant is the
respondent's mother.
The deed was drawn by a solicitor and executed
in his presence. The appellant pleaded non est factum
and undue influence. With regard to the plea of non
est factrn the trial judge stated:
"It is the position of the plaintiff in this case that she signed a document which was radically different ' from that which she intended to sign. With respect, I cannot agree .with the position
taken by the plaintiff. I accept the evidence
of Mr. Kennedy who stated several times that
there was no doubt in his mind that the
plaintiff knew what she was doing when she
signed the deed.
Mrs. MacDonald was not a novice when it came to transactions involving the transfer of land and had been involved in several land transactions in the past. She was an alert woman who looked after her own affairs including payment of taxes and other expenses in connection with the house. She conducted her own banking and was independent of others in her day to day life. " In dealing with the plea of undue influence
the trial judge stated:
"As expressed earlier in this judgment, the
plaintiff was independent and looked after
her own needs including her financial affairs.
Shopping together did not connote any more
than a normal mother-daughter relationship
of affection and companionship.
The burden is on the plaintiff in the first
instance to adduce evidence which establishes
that the type of relationship exists whereby
the donee is in a position to exercise 'undue1
in£l uence. Obviously, most people are
influenced by those in close proximity but
the influence has to be 'undue1 in the sense
the influence is being exercised for an unfair
advantage either by reason of the dominant
role of the expectant donee or the servient
role of the donor or a combination of both
factors.
In my opinion, the plaintiff has failed to prove that a relationship as described existed and has failed to prove any undue influence was exer . cised by the defendant on the plaintiff " An examination of the evidence clearly shows
that the appellant knew what she was doing when she
signed the deed and that there was no undue influence
exercised which led her to execute the document. As
we agree with the conclusions of the trial judge the
appeal is dismissed with costs.
Concurred in:
Macdonald, J.A
Pace, J.A.
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