Citation: Estate of Patricia Duffy Date - Government of Prince ...

Citation: Estate of Patricia Duffy Date: 20041112
2004 PESCTD 67 Docket: S1-GS-20220
Registry: Charlottetown
PROVINCE OF PRINCE EDWARD ISLAND
IN THE SUPREME COURT - TRIAL DIVISION
IN THE MATTER OF a motion of CHARLES
DUFFY, in his own right and as the
Executor of the Estate of Patricia Duffy,
for an Order for payment of money out of
Court, pursuant to Rule 72 of the Rules of
Court.
BEFORE: The Honourable Justice Wayne D. Cheverie
Appearances:
John A. Carr, Q.C. - Solicitor for the applicant
Place and date of hearing - Charlottetown, Prince Edward Island
September 28, 2004
Place and date of judgment - Charlottetown, Prince Edward Island
November 12, 2004

Citation: Estate of Patricia Duffy S1-GS-20220
2004 PESCTD 67
IN THE MATTER OF a motion of
CHARLES DUFFY, in his own right
and as the Executor of the Estate of
Patricia Duffy, for an Order for
payment of money out of Court,
pursuant to Rule 72 of the Rules of
Court.
Prince Edward Island Supreme Court - Trial Division
Before: Cheverie J.
Heard: September 28, 2004
Judgment: November 12, 2004
[11 pages]
Wills - construction - insurance declaration - testator stated in her will life insurance
payable to estate and later in will indicates her brother is to have the life insurance
proceeds - who is entitled to the life insurance proceeds.
STATUTES CONSIDERED: Probate Act, R.S.P.E.I. 1988, Cap. P-21 s. 70; Insurance
Act, R.S.P.E.I. 1988, Cap. I-4, s. 138, s-s 144.(1), s. 119.
TEXT CONSIDERED: Norwood on Life Insurance Law in Canada, (3d) Carswell,
2002.
CASES CONSIDERED: McKie v. McKie (1965), 54 W.W.R. 316 (Man. Q.B.);
Re Church (1977), 17 O.R. (2d) 476 (Ont. H.C.).
John A. Carr, Q.C. - Solicitor for the applicant

Cheverie J.:
Background
[1] The applicant, Charles Duffy, is the brother of the deceased, Patricia Duffy,
who died on June 19, 2002. At the time of her death, Patricia Duffy held two life
insurance policies - one in the amount of $40,000 referred to as the “Pitney Bowes
Policy”, and another in the amount of $45,000 referred to as the “Moore Policy”. The
applicant was named as the beneficiary of the Moore Policy, as is evidenced by a
beneficiary designation form dated October 29, 2001.
[2] By letter dated January 7, 2002 addressed to the applicant, Patricia Duffy listed
her insurance policies and her RRSP holdings. After listing her life insurance policies,
she indicates in bold type: “$200,000 payable to estate”. She then goes on to list her
RRSP holdings, followed by the statement, again in bold type: Charles Duffy is the
benefactor for my life and LTD insurance as well as by rrsps.
The remaining four and a half pages of her letter deal with her estate in great detail.
[3] By order of DesRoches C.J., dated July 3 rd , 2002, which order was made under
the Probate Act, R.S.P.E.I. 1988, Cap. P-21, s. 70, the January 7, 2002 letter was
found to be the last will and testament of Patricia Duffy. That document reads as
follows:
January 7, 2002
Mr. Charles Duffy
Cornwall, R.R. #2
P.E.I.
COA 1X0
Dear Charles
The following is a breakdown of the insurance I currently have through my
company, Moore North America, Inc.
Life Insurance $ 85,000.00
Accidental Life insurance $115,000.00
LTD (69% of earnings)
Total Insurance $200,000payable to estate.
RRSP’s TD Bank $6,100.00
TD Bank $1,500.00
Moore RRSP $2,500.00

Page: 2
$10,100.00
Charles Duffy is the benefactor for my life and LTD insurance as well as
my rrsps.
In the event of my death, the allowances for family are to be distributed as
noted below. Ron is to receive the two small pictures he gave me in the
living room. Tiffany & Draper are to receive $5,000 each to be used for
post secondary education or else receive the lump sum on their 30 th
birthday.
In addition to the will, I wish to leave the following to my family members.
Mom & Dad - $25,000.
Music stand - Mom & Dad
Antique picture in living room (Gold frame) - Mom & Dad
Tobacco Stand in living room - Mom & Dad
Any other pictures they would like to have that has not been allocated to
someone else - Mom & Dad
PATRICIA DUFFY
Last Will & Testament
Page 2:
January 7, 2002
Engagement ring - Mary Beth Bradley
Peweter Clock - Mary Beth & Emmett Bradley
Crystal bowl in China cabinet - Mary Beth and Emmett Bradley
Bedroom tea serving tray - Mary Beth Bradley
Two small pictures in master bedroom in brown metal frames-Sarah Bradley
Grandma Johnston’s gravy bowl - Sarah Bradley
Birthstone ring - Sarah Bradley
Stained glass parrot in window - Emily Bradley
Original painting(girl by tree) - Emily Bradley
DVD Player - Bobby Bradley
Diamond earrings and pearl ring - Margaret Murphy
Hutch in kitchen - Margaret Murphy
Flower picture - Margaret & Shawn Murphy
Welcome stand - Margaret Murphy
China doll in China cabinet - Bethany Murphy (Doll was given to Aunt Bea
when she was 13 (she gave it to me in her 90's), given to her mother by her
Grandmother when she was 13. It was given to me when I as 13. Doll is
estimated to be over 250 years old)
Mom’s china cream and sugar bowls - Bethany Murphy
Musical Doll Marriage figurine - Katie Murphy
Musical Ball - Katie Murphy

Page: 3
Crystal award on my desk in office - Katie Murphy
Teddy Bear (beige) - Adam Murphy
Paul Peel Picture in office - Adam Murphy
Speakers in livingroom - Adam Murphy
Rocky Point Picture - Ryan Murphy
VCR - Ryan Murphy
Amp - Ryan Murphy
PATRICIA DUFFY
Last Will & Testament
Page 3:
January 7, 2002
Antique dresser with open doors in bedroom - Eleanor Duffy
Large pewter picture frame in closet - Eleanor Duffy
Crystal vase in living room - Eleanor Duffy
Antique clock in living room - Eleanor Duffy
Paderno cookware - Eleanor Duffy
Antique lamp - Eleanor Duffy
Eleanor is to take Clancy should she have accommodations that would suit
a dog. This means, if Eleanor still has to work 12 hour shifts, Clancy is to
stay with someone who will be around more often than that. Clancy is
used to being around people on a daily and regular basis. If Eleanor is not
able to accommodate Clancy, Katie Murphy is to take Clancy and bring
her up. There are to be no exceptions with Clancy and she is to go to the
best home possible. Should there be any dispute, Charles and Michelle
are to make the final decision.
China serving bowl in china cabinet - Nancy Olscamp
Crystal vase in livingroom - Nancy Olscamp
Solid gold chain - Nancy Olscamp
Old dresser (yet to be re-finished with broken mirror) - Nancy Olscamp
Jewelry box (glass) - Nancy Olscamp
Brown Teddy bear in bedroom - Lucas Olscamp
Crystal globe award in china cabinet - Lucas Olscamp
Nancy is also to receive an additional lump sum of $4,000.
Antique picture of Grandparents - Charles & Michelle Duffy
Fern given by Fr. Corcoran - Charles & Michelle Duffy
Goose planter from Grandma Johnston - Charles & Michelle Duffy
Clay figurine on coffee table (my favorite) - Justin Murphy
Spare bedroom set - Charles & Michelle Duffy
Bear Picture in spare bedroom - Emma Duffy
Henry Perry’s chair that was re-covered - Robert Duffy
Old trunk in basement - Robert Duffy

Page: 4
China Cabinet - Robert & Karen Duffy
Stained glass mirror made by Amy Duffy - Robert & Karen Duffy
Rocking chair - Robert & Karen Duffy
PATRICIA DUFFY
Last Will & Testament
Page 4:
January 7, 2002
Antique clock - Peter Duffy
Painting in office by Peter Duffy - Peter Duffy
Dark end table in living room - Peter Duffy
Duvet - Peter Duffy & Grandma’s Afgan
Waredrobe in basement apartment (Krista currently has) - Peter Duffy
Small gold framed pictures in livingroom - Leah Sinnott
Leah is also to receive $5000.00 for Sam’s Education fund or as she decides
to allocate the monies for Samuel.
Opal ring - Leah Sinnott
Stained Glass Bird in Kitchen - Amy Duffy
Glass apple jar and glasses - Amy Duffy
Picture of the wood scene - Matthew Duffy
Wicker rocker - Wally & Sharon Ross
Stained glass ball - Carol Burden
Stained glass Ball - Gini Reeves
Columbia Jacket in main closet - Gini Reeves
Gini is to also receive $2,000.
Stained Glass Lamp - Krista McGurire
My Crystal award - Krista McGurire
My Lawn Chair - Krista McGuire
My ornament from Cuba - Krista
Two girl picture in master bedroom - Kennedy McGuire
After the Bath picture in master bedroom - Hannah Koughan
Island through the trees scene picture - Max Koughan
The four poster bed in main bedroom - Larry Koughan
PATRICIA DUFFY
Last Will & Testament
January 7, 2002
Page 5:
Mr. Kitty is to stay with Krista & Kennedy should she outlive me.

Page: 5
Kennedy is to receive $1,000. From my estate to be put into a college fund
for post-secondary education. Krista is also to receive other afgan in
closet and Pleather jacket.
$2,000. Is to be put away for each niece and nephew to be used for postsecondary
education.
$25,000. Is to go to Peter Duffy to help pay for his student loan (as
previously mentioned).
$15,000. Is to go to Charles as Executor of my estate.
The balance of the monies remaining in my estate is to be divided equally
among my family members.
Any arguments resulting in the above will require that individual to
relinquish their shares in my property, be given back to the Estate and
then re-sold and divided among Everyone mentioned in my will..
Any property not noted in the above is to be sold off in a family auction
and the monies are to go to a charity selected by my Father, Mr. St. Clair
Duffy.
Should I also be the beneficiary of Ron’s life insurance in the amount of
$100,000. He is to change his benefactor, otherwise, $40,000. each is to be
put in trust for Tiffany and Draper to be collected on their 30 th birthday.
The balance is to be used for funeral services.
I wish to be cremated and my remains buried in Kinkora cemetary.
PATRICIA DUFFY
Last Will & Testament
January 7, 2002
Page 6:
I Patricia Duffy sign this letter at 13 Fernwood Blvd in Cornwall, P.E.I. on
Monday, January 7, 2002.
It is with sound mind and body I complete this will and ask that it be
carried out as per my instructions.
Signature: (Sgd.) Patricia Duffy
Patricia Duffy Witness
[4] Apparently the insurance company was unsure as to whom the insurance
proceeds were to be paid, so it made application to the Court for an order authorizing
payment of the insurance monies into court. That application was heard by Webber
J.A. of the Appeal Division of this Court, and on April 23, 2004 she ordered the

Page: 6
proceeds of the Pitney Bowes Policy and the Moore Policy be paid into court together
with accrued interest, and to be held in trust “until further Order of this Honourable
Court”. Webber J.A. made no other determination as to whom the insurance
proceeds should be payable, but she did request further information with respect to
the issue of alteration of beneficiary designation. The solicitor for the insurance
company did file a post-hearing memorandum as per Webber J.A.’s direction, and I
have had the benefit of reading that memorandum.
[5] The applicant framed the issues before me as follows:
Does the last will and testament of Patricia Duffy contain a life insurance
declaration, and if so:
(i) does it name the applicant as the beneficiary of all of the life insurance
policies held by the deceased; or
(ii) does it name the estate of the deceased as the beneficiary of all of the
life insurance policies held by the deceased?
[6] The answers to those questions will determine how and where the proceeds of
the insurance policies will be distributed.
The relevant law
[7] Since there has already been an order of this Court determining that Ms.
Duffy’s letter of January 7, 2002 constitutes her last will and testament, the question
becomes how should it be interpreted. Prior to writing her will, Ms. Duffy had
expressed a clear intention to designate the applicant as the beneficiary of the Moore
Policy and she did this on October 29, 2001. She did not execute a similar document
with respect to the Pitney Bowes Policy. However, she accurately lists the total
proceeds of those policies in her will. After doing so, she indicates they are payable
to her estate and then, a few lines later, indicates that Charles Duffy is to be the
“benefactor” of these insurance policies. If her intention was to pay these monies into
her estate, then they would be distributed according to her specific wishes as
contained in the latter part of her will. If, on the other hand, her intention was to
leave the proceeds of these insurance policies to the applicant, then that would be an
end of the matter because they would not form part of her estate.
[8] The Insurance Act, R.S.P.E.I. 1988, Cap. I-4 contains provisions whereby an
insured can, by a declaration, designate the beneficiary of an insurance policy. (See
s-s. 138.(1)). The Insurance Act also allows an insured to alter or revoke a
designation by declaration. (See s-s. 138.(2)). Further, the Insurance Act allows an
insured to designate his or her estate as the beneficiary to receive insurance money.

Page: 7
(See s-s. 138.(3)). In the event that an insured has designated a beneficiary, then the
insurance proceeds are payable to that beneficiary and do not form part of the estate
of the insured. (Insurance Act, s-s 144.(1).)
[9] A “declaration” is defined in s. 119 of the Insurance Act:
119. In this Part...
Part V
LIFE INSURANCE
INTERPRETATION
(g) “declaration” means an instrument signed by the insured
(i) with respect to which an endorsement is made on the
policy.
(ii) that identifies the contract, or
(iii) that describes the insurance or insurance fund or a part
thereof,
in which he designates, or alters or revokes, the designation of his
personal representative or a beneficiary as one to whom or for
whose benefit insurance money is to be payable; ...
A beneficiary declaration must be in writing and signed by the insured, but beyond
that, it does not appear any formal requirements must be met. The following excerpt
from Norwood on Life Insurance Law in Canada, (3d) Carswell, 2002 at pp. 293-294
is instructive:
The designation of a life insurance beneficiary may be made without any
formality other than that it must be in writing and signed by the insured,
with or without a witness. Unwritten or unsigned designations are of no
effect.
The beneficiary designation may be made as part of the contract,
including the application, or it may be endorsed on the policy, but it may
also be made in a separate document which is not attached to the policy.
“Declaration” will be used in this text to describe any signed, written
document in which the insured has designated, or revoked, a person named
or described as beneficiary for the life insurance benefit of the policy. A
declaration in favour of a beneficiary may also be included in a will, and
such a declaration, to be discussed later, may be considered as an insurance
declaration separate from the will.
[10] A beneficiary declaration can be contained in a will and where it is so found,

Page: 8
the effect of such declaration is to remove the insurance proceeds from forming part
of the estate of the insured, thereby having the same effect as a separate declaration
made outside of a will. (See McKie v. McKie (1965), 54 W.W.R. 316 (Man. Q.B.) and
Re Church (1977), 17 O.R. (2d) 476 (Ont. H.C.). See also Norwood on Life
Insurance Law in Canada at p. 302.)
[11] In the case of Re Church, the court found that a later declaration revokes or
alters an earlier declaration. The will in that case was quite brief and read as follows:
I, Donald Clark Church, being of sound mind do hereby bequeath to my
children, Peter Clark Church and Elaine Marie Church, all my assets in the
case of my death. Executors are to be my brother-in-law, M. Cermak of 70
Cockburn Rd., West Hill, Scarborough, Ont. and W.S. Aaron of 555
Cardinal Street, St. Laurent, Montreal, Quebec. The children, Peter &
Elaine are to share equally in the income from my life insurance policies
and to receive the principal when Peter reaches the age of twenty-five
years.
The court was asked to determine whether or not the testator had revoked an earlier
declaration making a life insurance policy payable to his estate by a new declaration
making the insurance process payable to the children. The court had this to say about
that issue:
...With that in mind, I note that the testator dealt with his general assets and
with his insurance policies as two separate matters under the provisions of
his will. He provided first for the bequest of all of his assets to his two
children and, in the same sentence, went on to appoint executors for the
obvious purpose of administering those assets. Then, in my view, as a
separate disposition by the last sentence of his will, he dealt with his
insurance policies. It seems reasonable to assume that the testator knew at
the time of execution of his will, that he named his estate as beneficiary in
the Pacific Life Insurance Company policy, and had he intended the
proceeds of that policy to form part of the estate, it would not have been
necessary for him to deal with it as a separate subject. In my view, the last
sentence of his will evidences a clear intention on his part to name new
beneficiaries to the policy and, as such, is a declaration within the meaning
of ss. 145 and 164 of the Insurance Act.
In essence, the court found that the testator directed his mind first to his general assets
and then to his insurance policies under the provisions of his will.
[12] The applicant submits that Patricia Duffy’s last will and testament can be
divided into two sections, namely, an insurance and RRSP section and a property
section. There is merit in that submission. Patricia Duffy clearly sets out her
insurance policies and RRSPs in the first page of her will, and then goes on in the
ensuing four and a half pages to deal with a litany of specific bequests. That being so,

Page: 9
did Patricia Duffy carve out of her estate the insurance policies in question and
sufficiently designate them for the benefit of the applicant?
Analysis
[13] It is not for me to revisit the decision of DesRoches C.J. that Patricia Duffy’s
letter of January 7, 2002 constitutes her last will and testament. I accept that finding.
What I must determine is what was her true intention with respect to her life
insurance policies. From the foregoing discussion of the law, it is clear that Patricia
Duffy could change the beneficiary of her life insurance policies and that she could
do so by a designation in her will. In October, 2001, she had clearly indicated the
applicant was to be the beneficiary of the Moore Policy. Then in her will, she refers
to the life insurance policies followed by the statement “$200,000 payable to estate”.
Stopping there, it would appear she changed the beneficiary on the Moore Policy
from the applicant to her estate and included in that designation the Pitney Bowes
Policy. But her will does not end there. She proceeds to list her RRSP holdings,
followed by the statement in bold type: “Charles Duffy is the benefactor for my life
and LTD insurance as well as my rrsps.”. This statement appears to be at odds with
her earlier reference to having the proceeds of her life insurance policy payable to her
estate.
[14] After reflecting on the law relevant to the construction of a will, with particular
reference to the words chosen by Patricia Duffy to constitute her last will and
testament, I am of the view that her reference to “$200,000 payable to estate” does
not amount to a declaration. Further, her later statement: “Charles Duffy is the
benefactor for my life and LTD insurance as well as my rrsps” constitutes a separate
insurance declaration designating the applicant as the beneficiary of all her life
insurance policies. Such a finding is consistent with Patricia Duffy’s earlier clear
designation of the applicant as beneficiary of the Moore Policy. It is also consistent
with her use of the word “benefactor” in relation to the applicant in conjunction with
her life insurance policies, and her use of the words “benefactor” and “beneficiary”
interchangeably in another part of her will. That appears on p. 5:
Should I also be the beneficiary of Ron’s life insurance in the amount of
$100,000. He is to change his benefactor, otherwise, $40,000. each is to be
put in trust for Tiffany and Draper to be collected on their 30 th birthday.
The balance is to be used for funeral services.
I conclude from reading the entire will that Ms. Duffy did not distinguish between the
terms “benefactor” and “beneficiary”. When she referred to the applicant as “the
benefactor for my life and LTD insurance...”, she meant “beneficiary”.
[15] At the hearing of this motion, the court was advised the Moore Policy was so

Page: 10
described because “Moore” was Patricia Duffy’s employer at the time. She left that
employment on May 30 th , 2002 to go to work with “Pitney Bowes”. She died on June
19 th , 2002 having just made the transition from one employer to another. I was also
advised by counsel that the policy of accidental life insurance in the amount of
$115,000.00 was not transferred to her new employer, thereby leaving only the two
life insurance policies in question here totalling $85,000. I am further advised when
one totals the specific cash bequests set out in the last four and a half pages of her
will, the final figure approximates $115,000. Unfortunately, the accidental life
insurance of $115,000 was not in force at the time of Patricia Duffy’s death.
[16] One might conclude it was Patricia Duffy’s intention to give all of her life
insurance proceeds to the applicant and then charge him with the responsibility of
taking care of each of the specific bequests. I believe such a conclusion is
reasonable. If successful in this motion, the applicant clearly intends to carry out his
sister’s wishes. He says so in his affidavit filed in support of his motion:
6. It is my contention that the proceeds of both insurance policies should
be payable directly to me and not to the estate of my sister. That
notwithstanding my claim, I have acted as Executor of the Estate of my sister
to the best of my ability and that in doing so, I have incurred personal
expenses in the amount of $17,660.93.
7. THAT there are other expenses of the estate which remain unpaid.
8. THAT in the event this Honourable Court grants my request to have the
insurance funds payable to me in my own right, it is my intention to carry
out the wishes of my sister as expressed in her letter to me of January 7,
2002 so far as possible after reimbursing myself for expenses personally
incurred on behalf of my sister’s estate.
[17] None of the beneficiaries named in Patricia Duffy’s will opposed the motion,
nor did any of the creditors. Counsel advised that the creditors had been notified of
the motion hearing and indicated to counsel they were not sure if they were going to
appear or not. The fact is no one appeared at the hearing of this motion to object.
[18] When looked at in context, it appears to me that Patricia Duffy had great trust
in the applicant and intended that he be the beneficiary of all her life insurance
policies. She then trusted that he would have sufficient funds to attend to the specific
cash bequests which she set out in her will. That would have been the case had her
accidental life insurance policy been in force, but that fact in no way detracts from her
intention to give all the proceeds of her life insurance policies to the applicant.
[19] If I am wrong in concluding that the words “$200,000 payable to estate” is not
a declaration as contemplated by s. 119 of the Insurance Act, then I find the words

Page: 11
“Charles Duffy is the benefactor for my life and LTD insurance as well as my rrsps”
is a later declaration revoking the declaration to estate and substituting Charles Duffy
as beneficiary.
Conclusion
[20] In my view, the last will and testament of Patricia Duffy contains a life
insurance declaration naming the applicant as beneficiary of all of her life insurance
policies. An order will issue directing the proceeds of the insurance policies held in
trust by the court, together with accrued interest, be paid out directly to the applicant,
Charles Duffy.
November 12, 2004
____________________________________
J.