Whitford v. Whitford

Whitford v. Whitford

The transfer of $34,968.45 was a gift to the son but not an advancement; under R.S.N.S., 1923, c.147, s.13 the party asserting advancement bears the burden of proof and must prove it by the statutory means (writing or evidence on oath of equivalent cogency), which the respondent failed to do; concurrent factual findings on other accounting items were left undisturbed.

Citation
[1942] SCR 166
Parties
Defendant / Appellant: Edgar J. Whitford; Plaintiff / Respondent: Selena E. Whitford, Administratrix of the Estate of James E. Whitford, Deceased; Deceased / Estate: James E. Whitford (deceased)
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
3 February 1942
Procedural Posture
Estate Administration / Family Law Appeal / Appeal to the Supreme Court of Canada From Supreme Court of Nova Scotia in Banco
Outcome
Appeal allowed in part; cross-appeal dismissed without costs.
Legal Topics
Gift, Advancement, Intestacy, Accounting, Burden of Proof, Statutory Interpretation, Concurrent Findings of Fact
Source Language
English
Family Law Wills and Succession Property Law Evidence Gift Advancement Intestacy Accounting +3 more

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Parties

Edgar J. Whitford

Defendant / Appellant

Selena E. Whitford, Administratrix of the Estate of James E. Whitford, Deceased

Plaintiff / Respondent

James E. Whitford (deceased)

Deceased / Estate

Procedural Posture

Estate Administration / Family Law Appeal / Appeal to the Supreme Court of Canada From Supreme Court of Nova Scotia in Banco

Legal Issues

  1. 1 Whether transfer of bank funds was a gift or estate asset
  2. 2 Whether the gift was an advancement on distributive share under Nova Scotia law
  3. 3 What party bears the burden of proof to establish an advancement under R.S.N.S. 1923 c.147 s.13

Ratio Decidendi

The transfer of $34,968.45 was a gift to the son but not an advancement; under R.S.N.S., 1923, c.147, s.13 the party asserting advancement bears the burden of proof and must prove it by the statutory means (writing or evidence on oath of equivalent cogency), which the respondent failed to do; concurrent factual findings on other accounting items were left undisturbed.

Court Disposition

Appeal allowed in part; cross-appeal dismissed without costs.

Orders

  • Appeal allowed in part with full costs of appeal to the appellant; cross-appeal dismissed without costs.
  • Replace trial order as to costs: "The plaintiff will recover from the defendant one-third of her costs, of action to be taxed, and all the costs of the taking of accounts before the Referee, including the costs of the Referee; and she will be entitled to her costs of the counterclaim."