Tuesday, September 13, 2011

Davies v. Collins, 2011 NSCA 79

In this case, the Nova Scotia Court of Appeal held that recognition of a Trinidadian marriage in extremis as a valid marriage under the Nova Scotia Wills Act did not require the Court to also apply, under the principle of comity, the entire Trinidadian law governing such marriages. Therefore, the Court held that such marriages can revoke a prior will, in accordance with the Wills Act, even though Trinidadian law would produce the opposite outcome.

In 1989, the appellant's ex-husband, Dr. Davies, executed a will naming her the principle beneficiary and executrix. Following their divorce, Dr. Davies began a relationship with the respondent, and the two entered into a marriage in extremis in Trinidad and Tobago in July 2007. The trial judge found that the marriage between Dr. Davies and Ms. Collins in Trinidad, although its form was not recognized in Nova Scotia, constituted a marriage within the meaning laid out in s. 17 of the Wills Act. Then, the trial judge applied Nova Scotia law to determine that the marriage revoked the original will.

The appellant argued that Trinidadian law should have been applied to the case as a whole. Noting that comity is not a term of art in the conflict of laws, but rather a principle of international law requiring that states respect one another's legal actions, the Court rejected the appellant's argument. Recognizing the marriage in extremis as a valid marriage under Nova Scotia law did not necessitate applying provisions of Trinidadian law that contradicted Nova Scotia law. The Court also noted that Mr. Davies' presumed intention in drafting the will was that it be governed by Nova Scotia law.

September 13, 2011
Link to Decision

Sierra Robart & Kai Sheffield

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