Saturday, June 14, 2014

Vanston v. Scott

Laws governing wills and estates vary from province to province in Canada. If there is a dispute over a will, some parties may prefer the law of one province over another. Although often enough it is clear what province’s laws govern the dispute, that is not always the case.

Dr. James Montague Scott was born in Calgary Alberta, but practised as a radiologist in Kelowna, British Columbia from 1988 to 1999. He had significant conflicts with other radiologists, the Kelowna General Hospital and the B.C. College of Physicians and Surgeons. He moved to Saskatoon where he practised with a group of radiologists until March 2012, when he lost is job there.

Dr. Scott, together with his wife, Deborah Vanston, listed his condominium in Saskatoon for sale, and rented a home in Kelowna, in July, 2012, while he looked for work. He had a potential job in Powell River, British Columbia, but that feel through. Because of his previous conflicts, it was unlikely that he would find work in British Columbia, and he was looking for work abroad in Mexico and Central America, when he died in September 2012.

In his will, he left most of his estate to Ms. Vanston, and excluded his two children from his prior marriage.

Dr. Scott’s children challenged his will, alleging that he did not have the mental capacity to make a will, and that his wife unduly influenced him. They argued that the law of British Columbia should govern their challenge, while Ms. Vanston asserted that the law of Saskatchewan governs.

I don’t know what advantages there would be to the children if the law of British Columbia governs the question of their father’s capacity to make a will, or the issue of whether it was obtained by undue influence as the law stood in 2012, but I speculate that they may have preferred to have British Columbia govern if they later wished to make a claim under the B.C. Wills Variation Act (now Part 4, Division 6 of the Wills Estates and Succession Law) to vary the will if the court finds that the will is valid.

In any event the question of what law would apply to Dr. Scott’s personal property depends on where he was domiciled at the date of death. The trial of that issue came before Mr. Justice Dufour of the Saskatchewan Court of Queen’s Bench in Vanston v. Scott, 2014 SKQB 64 (CanLII).

Mr. Justice Dufour neatly summarized the law of domicile and the legal issue as follows:

[20] The law of domicile is well settled:
 1. A person will always have one, and only one, domicile at any point in his or her life. A person begins with a “domicile of origin”, which is generally the place where he or she was born.
 2. A domicile of origin can be displaced by the acquisition of a “domicile of choice”, a place where a person has acquired a residence in fact in a new place and has the intention to live there indefinitely.
 3. A person abandons a domicile of choice by ceasing to reside there in fact and by ceasing to intend to reside there permanently or indefinitely.
 4. A person can lose his or her domicile of choice by abandonment even though a new domicile of choice has not been acquired.
See: Wadsworth v. McCord (1886), 12 S.C.R. 466, [1886] S.C.J. No. 18 (QL); Trottier v. Rajotte, [1940] S.C.R. 203, [1940] 1 D.L.R. 433; Osvath-Latkoczy v. Osvath-Latkoczy, [1959] S.C.R. 751, 19 D.L.R. (2d) 495; Udny v. Udny (1869), L.R. 1 Sc. & Div. 441; Lauderdale Peerage (1885) 10 App. Cas. 692; Winans v. Attorney-General, [1904] A.C. 287; Lamond v. Lamond, [1948] 1 W.W.R. 1087, [1948] S.J. No. 5 (QL) (Sask. K.B.); Gunn v. Gunn (1956), 2 D.L.R. (2d) 351, 18 W.W.R. 85 (Sask. C.A.); Patterson v. Patterson (1956), 3 D.L.R. (2d) 266, [1955] N.S.J. No. 28 (QL) (N.S. Div. & Mat. Causes Ct.); Foote Estate (Re), 2011 ABCA 1, [2011] 6 W.W.R. 453.
[21] The questions here are whether or not Dr. Scott abandoned Saskatoon as his domicile of choice and, if he did, whether he acquired a new domicile of choice in British Columbia. Finally, if he abandoned Saskatoon but had not acquired a domicile of choice in British Columbia at the time of his death, where was his domicile?

Where was Dr. Scott domiciled at the date of his death? British Columbia or Saskatchewan?


When Dr. Scott left Saskatchewan in July of 2012, he abandoned Saskatchewan as his domicile of choice. He had listed his condominium for sale, had no job prospects in Saskatchewan, and Mr. Justice Dufour inferred that Dr. Scott had no intention of returning.

Although by renting a residence in Kelowna, Dr. Scott established a sufficient physical connection in British Columbia to establish British Columbia as his domicile of choice, Mr. Justice Dufour found that Dr. Scott did not intend to reside in British Columbia permanently or indefinitely. Dr. Scott had no job prospects in British Columbia either, and was looking for work abroad.

Consequently, Dr. Scott’s domicile at death was Alberta, which was his domicile of origin by virtue of his birth in Calgary.

Mr. Justice Dufour acknowledged that it may seem odd that the law of a province with which Dr. Scott may have had little connection should govern, but the law on this point is well established:

[44] I will concede that a decision that effectively results in the law of Alberta determining how his estate will be divided might appear arbitrary or odd. But that is the law and there is nothing that distinguishes the result here from the results in the raft of authorities that have stated and restated and applied that law for more than 100 years. Three of those are from the Supreme Court of Canada: Wadsworth v. McCord, supra; Trottier v. Rajotte, supra.; Osvath-Latkoczy v. Osvath-Latkoczy, supra. I see no great injustice here that cries out for redress but, in any event, the doctrine of stare decisis prevents me from going it alone with some new test that I might think is more appropriate. The doctrine of stare decisis “requires that courts make decisions consistent with the prior decisions of higher courts” and promotes “important values including consistency, certainty and predictability in the law” (Saskatchewan v. Saskatchewan Federation of Labour, 2013 SKCA 43, 361 D.L.R. (4 ) 132, at para. 29 and 30). Whether the principles that apply to the determination of domicile need overhauling (and I do not suggest that they do) is a decision that would have to be made by the Supreme Court of Canada (S.F.L., supra, at para 60). 

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