Jollimore Estate v. Nova Scotia (Public Archives)

A murderer may not inherit from his victim.

This principle in Canadian common law is straightforward enough as regards the murderer, but if the murderer is the beneficiary of his victim’s will, who gets the share the murderer would otherwise have received? This question is not always so simple, as indicated by a recent case in Nova Scotia, Jollimore Estate v. Nova Scotia (Public Archives), 2011 NSSC 218.

The facts are most tragic. Mrs. Roberta Jollimore suffered from Parkinson’s disease, and lived with her son, Gregory Jollimore. They were devoted to each other.

Their bodies were found in the house they shared. Near Gregory Jollimore’s body was a note that said “Please bury my beloved mother next to me. No plots purchased yet. Use funds in my account. G.J.” The Chief Medical Examiner was of the opinion that she had died of strangulation, and he of self-inflicted asphyxiation. Although there was some possibility that Mrs. Jollimore held on to life until after her son’s death, Mr. Justice Coughlan found it more probable that she died first. He also found that her son had taken her life.

Mrs. Jollimore’s will left everything to her son. She further provided in her will that “If my son, Gregory Ross Jollimore has predeceased me I give all of my estate, both real and personal and wheresoever situate to the Public Archives of Nova Scotia.”

If Gregory Jollimore had died first, there would be no question that the Public Archives would be the beneficiary of Mrs. Jollimore’s estate. But he had not died first. Does the estate go to the Public Archives as though he had? Or does the estate go to those of Mrs. Jollimore’s relatives who would have inherited her estate if she had died without a will?

Mr. Justice Coughlan approached this question by considering what Mrs. Jollimore’s intentions were when she made the will. She contemplated the possibility that her son would die before her, but she would not have contemplated that her son would kill her. Mr. Justice Coughlan inferred that in these circumstances, her intention was to benefit the Public Archives if her son did not receive her estate. He wrote at paragraphs 30 through 34:

[30] As stated, the first duty of the Court is to ascertain the intention of the testator from the language in the will. However, we know some of the language of Roberta Jollimore’s will does not apply by operation of law - the gift to Gregory Jollimore cannot take effect.  

[31] For reasons of public policy, Gregory Ross Jollimore cannot benefit from his mother’s estate. Therefore, to ascertain Mrs. Jollimore’s subjective intent, in the circumstances Gregory Ross Jollimore has to be removed from consideration.

[32] What was Mrs. Jollimore’s actual or subjective intention? It was that her son, Gregory Ross Jollimore, would receive her estate upon her death and if Mr. Jollimore did not receive her estate, the estate was to go to the Public Archives of Nova Scotia. Mrs. Jollimore used words to express her intention. She would not say if my son predeceases me or kills me then the estate should go to the Public Archives. It would not be in her contemplation her son - her beneficiary - would kill her. Mrs. Jollimore would not use words to limit the gift to Gregory Jollimore other than if he predeceased her, as she did in the clause appointing her executor, as she would want her estate to benefit her son if he was disabled.

[33] Mrs. Jollimore’s will was straight forward - if Gregory Jollimore did not receive her estate, it was to go to the Public Archives. No other parties were mentioned. To use the words, “If my son, Gregory Ross Jollimore has predeceased me”, in the circumstances of this case to find an intestacy would completely ignore Roberta Jollimore’s wishes.

[34] The residue of Roberta Jollimore’s estate is to go to the Public Archives of Nova Scotia.