Hemphill Estate v. Hemphill
The trial judge was not satisfied on the evidence that Jean Hemphill was incompetent at the time of the marriage; given the presumption of competence and the applicant's failure to prove incompetence on the balance of probabilities, there was no palpable or overriding error to justify appellate intervention; appeal...
Source-derived case information.
- Citation
- 1998 NSCA 119
- Parties
- Appellant: The Estate of Jean Hemphill, by Guardian Margaret McInnis; Respondent: Aldrich Hemphill
- Court
- Nova Scotia Court of Appeal
- Jurisdiction
- Canada
- Judgment Date
- 18 June 1998
- Procedural Posture
- Appeal From Trial Court Judgment / Court of Appeal Judgment (appeal Heard and Dismissed)
- Outcome
- Appeal dismissed
- Legal Topics
- Marriage Nullity, Competency to Marry, Burden of Proof, Presumption of Competence, Appellate Review Standard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
The Estate of Jean Hemphill, by Guardian Margaret McInnis
Appellant
Aldrich Hemphill
Respondent
Procedural Posture
Appeal From Trial Court Judgment / Court of Appeal Judgment (appeal Heard and Dismissed)
Legal Issues
- 1 Whether Jean Hemphill was legally incompetent to marry on December 10, 1993
- 2 Whether the trial judge erred in finding the appellant failed to prove incompetence on a balance of probabilities
- 3 Whether there was a palpable and overriding error justifying appellate interference
Ratio Decidendi
The trial judge was not satisfied on the evidence that Jean Hemphill was incompetent at the time of the marriage; given the presumption of competence and the applicant's failure to prove incompetence on the balance of probabilities, there was no palpable or overriding error to justify appellate intervention; appeal dismissed.
Court Disposition
Appeal dismissed
Orders
- Appeal dismissed
- Appellant to pay respondent's costs of this appeal fixed at $1,000.00 inclusive of disbursements
Full Case Text
Judgment text and source record
1 paragraphs
Hemphill Estate v. Hemphill Court Court of Appeal Date 1998-06-18 Citation 1998 NSCA 119 Docket CA 144042 Judge/Registrar/Adjudicator Hallett, J. Doane (Honourable Justice) (CA); Bateman, Nancy J. (Honourable Justice) (CA); Flinn, Edward J. (Honourable Justice) Document Type Decision Relations Library Sheet - Hemphill Estate v. Hemphill - 1998 NSCA 119 - 1998-06-18 - Library Sheet Decision Content Date: 19980618 Docket: C.A. 144042 NOVA SCOTIA COURT OF APPEAL Cite as: Hemphill Estate v. Hemphill, 1998 NSCA 119 Bateman, Hallett and Flinn, JJ.A. BETWEEN: THE ESTATE OF JEAN HEMPHILL, by the ) Hector J. MacIsaac Guardian MARGARET McINNIS ) for the Appellant ) Appellant ) ) - and - ) ) Thomas W. Jarmyn ) for the Respondent ALDRICH HEMPHILL ) ) Respondent ) Appeal Heard: ) June 18, 1998 ) ) ) Judgment Delivered: ) June 18, 1998 ) ) ) ) ) ) ) ) THE COURT: Appeal dismissed per oral reasons for judgment of Flinn, J.A.; Hallett and Bateman, JJ.A. concurring. FLINN, J.A.: This is an appeal from the decision of Justice MacLellan of the Supreme Court of Nova Scotia. Justice MacLellan denied the appellant’s application for a declaration of nullity of the marriage of Jean Hemphill and Aldrich Hemphill. The appellant’s submission on the hearing of the application was that on the date of the marriage, December 10th, 1993, Jean Hemphill was incompetent. In denying the appellant’s application the trial judge said: I am not satisfied based on the evidence I have heard or the exhibits introduced that at the time of the marriage, that is, December 10th, 1993, Jean Hemphill was incompetent. A person is presumed to be competent until proven otherwise. I appreciate the difficulties involved in attempting to prove that issue at this time, however, that is the burden the applicant must meet. In concluding that the appellant had not established, on a balance of probabilities, that at the time of her marriage Mrs. Hemphill was unable to appreciate the nature and quality of the marriage contract, the trial judge made no palpable or overriding error. There is, therefore, no basis for this Court to interfere with that conclusion. (see Toneguzzo-Norvell v. Burnaby Hospital, [1994] 1 S.C.R. 114 (S.C.C.)). The appeal is dismissed. The appellant will pay to the respondent his costs of this appeal which are fixed at $1,000.00 inclusive of disbursements. Flinn, J.A. Concurred in: Hallett, J.A. Bateman, J.A. C.A. No.144042 NOVA SCOTIA COURT OF APPEAL BETWEEN: THE ESTATE OF JEAN HEMPHILL, by the Guardian MARGARET McINNIS ) ) Appellant ) - and - ) REASONS FOR ) JUDGMENT BY: ALDRICH HEMPHILL ) ) FLINN, J.A. ) (Orally) Respondent ) ) ) ) ) ) )