Berbaum Estate v. Silver

Berbaum Estate v. Silver Court Supreme Court Date 2001-02-14 Citation 2001 NSSC 36 Docket S AR 01322 Judge/Registrar/Adjudicator Gruchy, David W. (Honourable Justice) Document Type Decision Decision Content Date: 2001/2/14 Docket: S.AR. 01322 IN THE SUPREME COURT OF NOVA SCOTIA [Cite as: Berbaum Estate v. Silver, 2001 NSSC 36] BETWEEN: FRANCES BLYNN, Administratrix of the Estate of Myrtle O. Berbaum, deceased PLAINTIFF - and - JEAN E. SILVER DEFENDANT D E C I S I O N HEARD BEFORE: The Honourable Justice David W. Gruchy PLACE HEARD: Annapolis Royal, Nova Scotia DATE HEARD: February 14, 2001 DECISION: February 14, 2001 (Orally) WRITTEN RELEASE OF ORAL: March 2, 2001 COUNSEL: W. Bruce Gillis, Q.C. for the plaintiff H. Wayne Milner for the defendant GRUCHY, J. (Orally): [1] This is an application by the plaintiff pursuant to Civil Procedure Rule 25.01(1), whereby the Court is requested to determine, in a preliminary fashion, what law applies to the survivorship of a joint account in Nova Scotia. [2] For the purposes of this decision I will not outline the factual situation giving rise to the question. The facts are well set forth in previous decisions of Haliburton, J. The question now posed to the Court centres around the survivorship of a joint account in Nova Scotia held by the deceased Myrtle Berbaum until her death with the defendant Jean Silver. [3] The defendant believes and submits that there is a difference of survivorship rights of joint account holders in Florida and in Canada. [4] Mrs. Berbaum had been domiciled in Florida at the time of establishing the account in question and until her death. The defendant says therefore that the law of Florida applies to the survivorship of the account and, accordingly, pursuant to the law of Florida the joint account survivor takes the entire residue of that account. The defendant submits that the survivorship right of the account in accordance with the law of Florida may well have been considered by the Testator at the time of preparation of the will and perhaps at other times such that the surviving joint account holder would take the entire residue of that account pursuant to Florida law. [5] The plaintiff, however, takes the opposite view with respect to the survivorship of the account. She says that it is a matter of pure law and there is no evidentiary question to be considered. The intention of Mrs. Berbaum may have to be determined in examining the question of the survivorship of the joint account pursuant to Canadian law, but the survivorship question is not automatic. [6] I agree with the plaintiff. The question of which law is applicable in considering the survivorship of a joint account is solely a legal question and is not factually oriented. The actual survivorship of the account will be factually oriented, but those facts have no play in the determination of which law applies. [7] I have considered carefully the ambit of my authority pursuant to Civil Procedure Rule 25.01(1)(a) which reads as follows: 25.01(1) The court may, on the application of any party or on its own motion, at any time prior to a trial or hearing, (a) determine any relevant question or issue of law or fact, or both; ... [8] My consideration herein will be restricted to the question of law. In reaching my conclusion I have considered especially the cases of: Seacoast Towers Services Ltd. v. MacLean (1986), 75 N.S.R. (2d) 70 (N.S.S.C., A.D.); Binder v. Royal Bank of Canada et al. (1996), 150 N.S.R. (2d) 234 (N.S.C.A.) and Brown v. Dalhousie University (1995), 142 N.S.R. (2d) 98 (N.S.C.A.). In addition, I have considered the cases therein referred to. [9] It is clear that a bank account is essentially a debt due from a bank to its customer or customers. Castel, Canadian Conflict of Laws (2nd ed.) at p.401 addresses the matter of "Simple contract debts" and the law applicable to those debts as follows: 289. Simple contract debts A debt arising out of a simple contract is deemed to be situated in the place in which it is properly recoverable by action, that is, in general, the legal unit in which the debtor is resident. The debtor may be resident in a number of legal units; in such a case the situs of the debt is the place where payment would be made in the normal course of commercial usage, for example, in the case of a debt due from a bank to customer, at the branch where the account is kept, ... [10] The Privy Council, the House of Lords, on appeal from the Supreme Court of Canada in 1912 in the case of R. v. Lovitt (1911), [1912] A.C. 212, held (as reflected in the headnote): The property consisted of simple contract debts, the obligation to pay being primarily confined to the New Brunswick branch of the bank, and these debts for the purpose of legal representation, of collection, and of administration as distinguished from distribution are governed by the law of New Brunswick, where they were locally situated. [11] On the face of the pleadings and of the documents herein, it is clear that the account is property situate within Nova Scotia. [12] R. v. Lovitt was considered with approval in R. v. Woodstock (Town Assessors), Ex Parte Bank of Nova Scotia, [1924] S.C.R. 457, 4 D.L.R. 169 when Duff, J. of the Supreme Court of Canada said, at p. 171: I agree with the argument presented on behalf of the appellant bank that the effect of Rex v. Lovitt, [1912] A.C. 212, is that deposits made at the branch in the ordinary way have a situs in Woodstock because in the ordinary course, so long as the branch is maintained, it is there and there only, that payment of these deposits can, as of right, be demanded by the depositor. [13] I have also considered cases cited to me by the plaintiff as follows: Richardson v. Richardson, [1927] P. 228; Re Korvine's Trust, Levashoff v. Block (1920), [1921] 1 Ch. 343. [14] It is my conclusion that it is the obligation of the bank to repay the joint account holders pursuant to the law of the situs: Nova Scotia. [15] The ultimate disposition of the joint account herein will be a matter to be determined upon relevant evidence adduced pursuant to Nova Scotia law. The defendant is not precluded in any fashion from calling such relevant evidence. Should the law of Florida be a relevant consideration in determining the wishes of Mrs. Berbaum as to the disposition of the joint account the defendant is in no way precluded from adducing evidence with respect to that matter. [16] In the meantime, however, I do rule that the law of Nova Scotia is applicable to the account. J.