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

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

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


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<strong>Citation</strong>: <strong>Estate</strong> <strong>of</strong> <strong>Patricia</strong> <strong>Duffy</strong> <strong>Date</strong>: 20041112<br />

2004 PESCTD 67 Docket: S1-GS-20220<br />

Registry: Charlottetown<br />



IN THE MATTER OF a motion <strong>of</strong> CHARLES<br />

DUFFY, in his own right and as the<br />

Executor <strong>of</strong> the <strong>Estate</strong> <strong>of</strong> <strong>Patricia</strong> <strong>Duffy</strong>,<br />

for an Order for payment <strong>of</strong> money out <strong>of</strong><br />

Court, pursuant to Rule 72 <strong>of</strong> the Rules <strong>of</strong><br />

Court.<br />

BEFORE: The Honourable Justice Wayne D. Cheverie<br />

Appearances:<br />

John A. Carr, Q.C. - Solicitor for the applicant<br />

Place and date <strong>of</strong> hearing - Charlottetown, <strong>Prince</strong> Edward Island<br />

September 28, 2004<br />

Place and date <strong>of</strong> judgment - Charlottetown, <strong>Prince</strong> Edward Island<br />

November 12, 2004

<strong>Citation</strong>: <strong>Estate</strong> <strong>of</strong> <strong>Patricia</strong> <strong>Duffy</strong> S1-GS-20220<br />

2004 PESCTD 67<br />

IN THE MATTER OF a motion <strong>of</strong><br />

CHARLES DUFFY, in his own right<br />

and as the Executor <strong>of</strong> the <strong>Estate</strong> <strong>of</strong><br />

<strong>Patricia</strong> <strong>Duffy</strong>, for an Order for<br />

payment <strong>of</strong> money out <strong>of</strong> Court,<br />

pursuant to Rule 72 <strong>of</strong> the Rules <strong>of</strong><br />

Court.<br />

<strong>Prince</strong> Edward Island Supreme Court - Trial Division<br />

Before: Cheverie J.<br />

Heard: September 28, 2004<br />

Judgment: November 12, 2004<br />

[11 pages]<br />

Wills - construction - insurance declaration - testator stated in her will life insurance<br />

payable to estate and later in will indicates her brother is to have the life insurance<br />

proceeds - who is entitled to the life insurance proceeds.<br />

STATUTES CONSIDERED: Probate Act, R.S.P.E.I. 1988, Cap. P-21 s. 70; Insurance<br />

Act, R.S.P.E.I. 1988, Cap. I-4, s. 138, s-s 144.(1), s. 119.<br />

TEXT CONSIDERED: Norwood on Life Insurance Law in Canada, (3d) Carswell,<br />

2002.<br />

CASES CONSIDERED: McKie v. McKie (1965), 54 W.W.R. 316 (Man. Q.B.);<br />

Re Church (1977), 17 O.R. (2d) 476 (Ont. H.C.).<br />

John A. Carr, Q.C. - Solicitor for the applicant

Cheverie J.:<br />

Background<br />

[1] The applicant, Charles <strong>Duffy</strong>, is the brother <strong>of</strong> the deceased, <strong>Patricia</strong> <strong>Duffy</strong>,<br />

who died on June 19, 2002. At the time <strong>of</strong> her death, <strong>Patricia</strong> <strong>Duffy</strong> held two life<br />

insurance policies - one in the amount <strong>of</strong> $40,000 referred to as the “Pitney Bowes<br />

Policy”, and another in the amount <strong>of</strong> $45,000 referred to as the “Moore Policy”. The<br />

applicant was named as the beneficiary <strong>of</strong> the Moore Policy, as is evidenced by a<br />

beneficiary designation form dated October 29, 2001.<br />

[2] By letter dated January 7, 2002 addressed to the applicant, <strong>Patricia</strong> <strong>Duffy</strong> listed<br />

her insurance policies and her RRSP holdings. After listing her life insurance policies,<br />

she indicates in bold type: “$200,000 payable to estate”. She then goes on to list her<br />

RRSP holdings, followed by the statement, again in bold type: Charles <strong>Duffy</strong> is the<br />

benefactor for my life and LTD insurance as well as by rrsps.<br />

The remaining four and a half pages <strong>of</strong> her letter deal with her estate in great detail.<br />

[3] By order <strong>of</strong> DesRoches C.J., dated July 3 rd , 2002, which order was made under<br />

the Probate Act, R.S.P.E.I. 1988, Cap. P-21, s. 70, the January 7, 2002 letter was<br />

found to be the last will and testament <strong>of</strong> <strong>Patricia</strong> <strong>Duffy</strong>. That document reads as<br />

follows:<br />

January 7, 2002<br />

Mr. Charles <strong>Duffy</strong><br />

Cornwall, R.R. #2<br />

P.E.I.<br />

COA 1X0<br />

Dear Charles<br />

The following is a breakdown <strong>of</strong> the insurance I currently have through my<br />

company, Moore North America, Inc.<br />

Life Insurance $ 85,000.00<br />

Accidental Life insurance $115,000.00<br />

LTD (69% <strong>of</strong> earnings)<br />

Total Insurance $200,000payable to estate.<br />

RRSP’s TD Bank $6,100.00<br />

TD Bank $1,500.00<br />

Moore RRSP $2,500.00

Page: 2<br />

$10,100.00<br />

Charles <strong>Duffy</strong> is the benefactor for my life and LTD insurance as well as<br />

my rrsps.<br />

In the event <strong>of</strong> my death, the allowances for family are to be distributed as<br />

noted below. Ron is to receive the two small pictures he gave me in the<br />

living room. Tiffany & Draper are to receive $5,000 each to be used for<br />

post secondary education or else receive the lump sum on their 30 th<br />

birthday.<br />

In addition to the will, I wish to leave the following to my family members.<br />

Mom & Dad - $25,000.<br />

Music stand - Mom & Dad<br />

Antique picture in living room (Gold frame) - Mom & Dad<br />

Tobacco Stand in living room - Mom & Dad<br />

Any other pictures they would like to have that has not been allocated to<br />

someone else - Mom & Dad<br />


Last Will & Testament<br />

Page 2:<br />

January 7, 2002<br />

Engagement ring - Mary Beth Bradley<br />

Peweter Clock - Mary Beth & Emmett Bradley<br />

Crystal bowl in China cabinet - Mary Beth and Emmett Bradley<br />

Bedroom tea serving tray - Mary Beth Bradley<br />

Two small pictures in master bedroom in brown metal frames-Sarah Bradley<br />

Grandma Johnston’s gravy bowl - Sarah Bradley<br />

Birthstone ring - Sarah Bradley<br />

Stained glass parrot in window - Emily Bradley<br />

Original painting(girl by tree) - Emily Bradley<br />

DVD Player - Bobby Bradley<br />

Diamond earrings and pearl ring - Margaret Murphy<br />

Hutch in kitchen - Margaret Murphy<br />

Flower picture - Margaret & Shawn Murphy<br />

Welcome stand - Margaret Murphy<br />

China doll in China cabinet - Bethany Murphy (Doll was given to Aunt Bea<br />

when she was 13 (she gave it to me in her 90's), given to her mother by her<br />

Grandmother when she was 13. It was given to me when I as 13. Doll is<br />

estimated to be over 250 years old)<br />

Mom’s china cream and sugar bowls - Bethany Murphy<br />

Musical Doll Marriage figurine - Katie Murphy<br />

Musical Ball - Katie Murphy

Page: 3<br />

Crystal award on my desk in <strong>of</strong>fice - Katie Murphy<br />

Teddy Bear (beige) - Adam Murphy<br />

Paul Peel Picture in <strong>of</strong>fice - Adam Murphy<br />

Speakers in livingroom - Adam Murphy<br />

Rocky Point Picture - Ryan Murphy<br />

VCR - Ryan Murphy<br />

Amp - Ryan Murphy<br />


Last Will & Testament<br />

Page 3:<br />

January 7, 2002<br />

Antique dresser with open doors in bedroom - Eleanor <strong>Duffy</strong><br />

Large pewter picture frame in closet - Eleanor <strong>Duffy</strong><br />

Crystal vase in living room - Eleanor <strong>Duffy</strong><br />

Antique clock in living room - Eleanor <strong>Duffy</strong><br />

Paderno cookware - Eleanor <strong>Duffy</strong><br />

Antique lamp - Eleanor <strong>Duffy</strong><br />

Eleanor is to take Clancy should she have accommodations that would suit<br />

a dog. This means, if Eleanor still has to work 12 hour shifts, Clancy is to<br />

stay with someone who will be around more <strong>of</strong>ten than that. Clancy is<br />

used to being around people on a daily and regular basis. If Eleanor is not<br />

able to accommodate Clancy, Katie Murphy is to take Clancy and bring<br />

her up. There are to be no exceptions with Clancy and she is to go to the<br />

best home possible. Should there be any dispute, Charles and Michelle<br />

are to make the final decision.<br />

China serving bowl in china cabinet - Nancy Olscamp<br />

Crystal vase in livingroom - Nancy Olscamp<br />

Solid gold chain - Nancy Olscamp<br />

Old dresser (yet to be re-finished with broken mirror) - Nancy Olscamp<br />

Jewelry box (glass) - Nancy Olscamp<br />

Brown Teddy bear in bedroom - Lucas Olscamp<br />

Crystal globe award in china cabinet - Lucas Olscamp<br />

Nancy is also to receive an additional lump sum <strong>of</strong> $4,000.<br />

Antique picture <strong>of</strong> Grandparents - Charles & Michelle <strong>Duffy</strong><br />

Fern given by Fr. Corcoran - Charles & Michelle <strong>Duffy</strong><br />

Goose planter from Grandma Johnston - Charles & Michelle <strong>Duffy</strong><br />

Clay figurine on c<strong>of</strong>fee table (my favorite) - Justin Murphy<br />

Spare bedroom set - Charles & Michelle <strong>Duffy</strong><br />

Bear Picture in spare bedroom - Emma <strong>Duffy</strong><br />

Henry Perry’s chair that was re-covered - Robert <strong>Duffy</strong><br />

Old trunk in basement - Robert <strong>Duffy</strong>

Page: 4<br />

China Cabinet - Robert & Karen <strong>Duffy</strong><br />

Stained glass mirror made by Amy <strong>Duffy</strong> - Robert & Karen <strong>Duffy</strong><br />

Rocking chair - Robert & Karen <strong>Duffy</strong><br />


Last Will & Testament<br />

Page 4:<br />

January 7, 2002<br />

Antique clock - Peter <strong>Duffy</strong><br />

Painting in <strong>of</strong>fice by Peter <strong>Duffy</strong> - Peter <strong>Duffy</strong><br />

Dark end table in living room - Peter <strong>Duffy</strong><br />

Duvet - Peter <strong>Duffy</strong> & Grandma’s Afgan<br />

Waredrobe in basement apartment (Krista currently has) - Peter <strong>Duffy</strong><br />

Small gold framed pictures in livingroom - Leah Sinnott<br />

Leah is also to receive $5000.00 for Sam’s Education fund or as she decides<br />

to allocate the monies for Samuel.<br />

Opal ring - Leah Sinnott<br />

Stained Glass Bird in Kitchen - Amy <strong>Duffy</strong><br />

Glass apple jar and glasses - Amy <strong>Duffy</strong><br />

Picture <strong>of</strong> the wood scene - Matthew <strong>Duffy</strong><br />

Wicker rocker - Wally & Sharon Ross<br />

Stained glass ball - Carol Burden<br />

Stained glass Ball - Gini Reeves<br />

Columbia Jacket in main closet - Gini Reeves<br />

Gini is to also receive $2,000.<br />

Stained Glass Lamp - Krista McGurire<br />

My Crystal award - Krista McGurire<br />

My Lawn Chair - Krista McGuire<br />

My ornament from Cuba - Krista<br />

Two girl picture in master bedroom - Kennedy McGuire<br />

After the Bath picture in master bedroom - Hannah Koughan<br />

Island through the trees scene picture - Max Koughan<br />

The four poster bed in main bedroom - Larry Koughan<br />


Last Will & Testament<br />

January 7, 2002<br />

Page 5:<br />

Mr. Kitty is to stay with Krista & Kennedy should she outlive me.

Page: 5<br />

Kennedy is to receive $1,000. From my estate to be put into a college fund<br />

for post-secondary education. Krista is also to receive other afgan in<br />

closet and Pleather jacket.<br />

$2,000. Is to be put away for each niece and nephew to be used for postsecondary<br />

education.<br />

$25,000. Is to go to Peter <strong>Duffy</strong> to help pay for his student loan (as<br />

previously mentioned).<br />

$15,000. Is to go to Charles as Executor <strong>of</strong> my estate.<br />

The balance <strong>of</strong> the monies remaining in my estate is to be divided equally<br />

among my family members.<br />

Any arguments resulting in the above will require that individual to<br />

relinquish their shares in my property, be given back to the <strong>Estate</strong> and<br />

then re-sold and divided among Everyone mentioned in my will..<br />

Any property not noted in the above is to be sold <strong>of</strong>f in a family auction<br />

and the monies are to go to a charity selected by my Father, Mr. St. Clair<br />

<strong>Duffy</strong>.<br />

Should I also be the beneficiary <strong>of</strong> Ron’s life insurance in the amount <strong>of</strong><br />

$100,000. He is to change his benefactor, otherwise, $40,000. each is to be<br />

put in trust for Tiffany and Draper to be collected on their 30 th birthday.<br />

The balance is to be used for funeral services.<br />

I wish to be cremated and my remains buried in Kinkora cemetary.<br />


Last Will & Testament<br />

January 7, 2002<br />

Page 6:<br />

I <strong>Patricia</strong> <strong>Duffy</strong> sign this letter at 13 Fernwood Blvd in Cornwall, P.E.I. on<br />

Monday, January 7, 2002.<br />

It is with sound mind and body I complete this will and ask that it be<br />

carried out as per my instructions.<br />

Signature: (Sgd.) <strong>Patricia</strong> <strong>Duffy</strong><br />

<strong>Patricia</strong> <strong>Duffy</strong> Witness<br />

[4] Apparently the insurance company was unsure as to whom the insurance<br />

proceeds were to be paid, so it made application to the Court for an order authorizing<br />

payment <strong>of</strong> the insurance monies into court. That application was heard by Webber<br />

J.A. <strong>of</strong> the Appeal Division <strong>of</strong> this Court, and on April 23, 2004 she ordered the

Page: 6<br />

proceeds <strong>of</strong> the Pitney Bowes Policy and the Moore Policy be paid into court together<br />

with accrued interest, and to be held in trust “until further Order <strong>of</strong> this Honourable<br />

Court”. Webber J.A. made no other determination as to whom the insurance<br />

proceeds should be payable, but she did request further information with respect to<br />

the issue <strong>of</strong> alteration <strong>of</strong> beneficiary designation. The solicitor for the insurance<br />

company did file a post-hearing memorandum as per Webber J.A.’s direction, and I<br />

have had the benefit <strong>of</strong> reading that memorandum.<br />

[5] The applicant framed the issues before me as follows:<br />

Does the last will and testament <strong>of</strong> <strong>Patricia</strong> <strong>Duffy</strong> contain a life insurance<br />

declaration, and if so:<br />

(i) does it name the applicant as the beneficiary <strong>of</strong> all <strong>of</strong> the life insurance<br />

policies held by the deceased; or<br />

(ii) does it name the estate <strong>of</strong> the deceased as the beneficiary <strong>of</strong> all <strong>of</strong> the<br />

life insurance policies held by the deceased?<br />

[6] The answers to those questions will determine how and where the proceeds <strong>of</strong><br />

the insurance policies will be distributed.<br />

The relevant law<br />

[7] Since there has already been an order <strong>of</strong> this Court determining that Ms.<br />

<strong>Duffy</strong>’s letter <strong>of</strong> January 7, 2002 constitutes her last will and testament, the question<br />

becomes how should it be interpreted. Prior to writing her will, Ms. <strong>Duffy</strong> had<br />

expressed a clear intention to designate the applicant as the beneficiary <strong>of</strong> the Moore<br />

Policy and she did this on October 29, 2001. She did not execute a similar document<br />

with respect to the Pitney Bowes Policy. However, she accurately lists the total<br />

proceeds <strong>of</strong> those policies in her will. After doing so, she indicates they are payable<br />

to her estate and then, a few lines later, indicates that Charles <strong>Duffy</strong> is to be the<br />

“benefactor” <strong>of</strong> these insurance policies. If her intention was to pay these monies into<br />

her estate, then they would be distributed according to her specific wishes as<br />

contained in the latter part <strong>of</strong> her will. If, on the other hand, her intention was to<br />

leave the proceeds <strong>of</strong> these insurance policies to the applicant, then that would be an<br />

end <strong>of</strong> the matter because they would not form part <strong>of</strong> her estate.<br />

[8] The Insurance Act, R.S.P.E.I. 1988, Cap. I-4 contains provisions whereby an<br />

insured can, by a declaration, designate the beneficiary <strong>of</strong> an insurance policy. (See<br />

s-s. 138.(1)). The Insurance Act also allows an insured to alter or revoke a<br />

designation by declaration. (See s-s. 138.(2)). Further, the Insurance Act allows an<br />

insured to designate his or her estate as the beneficiary to receive insurance money.

Page: 7<br />

(See s-s. 138.(3)). In the event that an insured has designated a beneficiary, then the<br />

insurance proceeds are payable to that beneficiary and do not form part <strong>of</strong> the estate<br />

<strong>of</strong> the insured. (Insurance Act, s-s 144.(1).)<br />

[9] A “declaration” is defined in s. 119 <strong>of</strong> the Insurance Act:<br />

119. In this Part...<br />

Part V<br />



(g) “declaration” means an instrument signed by the insured<br />

(i) with respect to which an endorsement is made on the<br />

policy.<br />

(ii) that identifies the contract, or<br />

(iii) that describes the insurance or insurance fund or a part<br />

there<strong>of</strong>,<br />

in which he designates, or alters or revokes, the designation <strong>of</strong> his<br />

personal representative or a beneficiary as one to whom or for<br />

whose benefit insurance money is to be payable; ...<br />

A beneficiary declaration must be in writing and signed by the insured, but beyond<br />

that, it does not appear any formal requirements must be met. The following excerpt<br />

from Norwood on Life Insurance Law in Canada, (3d) Carswell, 2002 at pp. 293-294<br />

is instructive:<br />

The designation <strong>of</strong> a life insurance beneficiary may be made without any<br />

formality other than that it must be in writing and signed by the insured,<br />

with or without a witness. Unwritten or unsigned designations are <strong>of</strong> no<br />

effect.<br />

The beneficiary designation may be made as part <strong>of</strong> the contract,<br />

including the application, or it may be endorsed on the policy, but it may<br />

also be made in a separate document which is not attached to the policy.<br />

“Declaration” will be used in this text to describe any signed, written<br />

document in which the insured has designated, or revoked, a person named<br />

or described as beneficiary for the life insurance benefit <strong>of</strong> the policy. A<br />

declaration in favour <strong>of</strong> a beneficiary may also be included in a will, and<br />

such a declaration, to be discussed later, may be considered as an insurance<br />

declaration separate from the will.<br />

[10] A beneficiary declaration can be contained in a will and where it is so found,

Page: 8<br />

the effect <strong>of</strong> such declaration is to remove the insurance proceeds from forming part<br />

<strong>of</strong> the estate <strong>of</strong> the insured, thereby having the same effect as a separate declaration<br />

made outside <strong>of</strong> a will. (See McKie v. McKie (1965), 54 W.W.R. 316 (Man. Q.B.) and<br />

Re Church (1977), 17 O.R. (2d) 476 (Ont. H.C.). See also Norwood on Life<br />

Insurance Law in Canada at p. 302.)<br />

[11] In the case <strong>of</strong> Re Church, the court found that a later declaration revokes or<br />

alters an earlier declaration. The will in that case was quite brief and read as follows:<br />

I, Donald Clark Church, being <strong>of</strong> sound mind do hereby bequeath to my<br />

children, Peter Clark Church and Elaine Marie Church, all my assets in the<br />

case <strong>of</strong> my death. Executors are to be my brother-in-law, M. Cermak <strong>of</strong> 70<br />

Cockburn Rd., West Hill, Scarborough, Ont. and W.S. Aaron <strong>of</strong> 555<br />

Cardinal Street, St. Laurent, Montreal, Quebec. The children, Peter &<br />

Elaine are to share equally in the income from my life insurance policies<br />

and to receive the principal when Peter reaches the age <strong>of</strong> twenty-five<br />

years.<br />

The court was asked to determine whether or not the testator had revoked an earlier<br />

declaration making a life insurance policy payable to his estate by a new declaration<br />

making the insurance process payable to the children. The court had this to say about<br />

that issue:<br />

...With that in mind, I note that the testator dealt with his general assets and<br />

with his insurance policies as two separate matters under the provisions <strong>of</strong><br />

his will. He provided first for the bequest <strong>of</strong> all <strong>of</strong> his assets to his two<br />

children and, in the same sentence, went on to appoint executors for the<br />

obvious purpose <strong>of</strong> administering those assets. Then, in my view, as a<br />

separate disposition by the last sentence <strong>of</strong> his will, he dealt with his<br />

insurance policies. It seems reasonable to assume that the testator knew at<br />

the time <strong>of</strong> execution <strong>of</strong> his will, that he named his estate as beneficiary in<br />

the Pacific Life Insurance Company policy, and had he intended the<br />

proceeds <strong>of</strong> that policy to form part <strong>of</strong> the estate, it would not have been<br />

necessary for him to deal with it as a separate subject. In my view, the last<br />

sentence <strong>of</strong> his will evidences a clear intention on his part to name new<br />

beneficiaries to the policy and, as such, is a declaration within the meaning<br />

<strong>of</strong> ss. 145 and 164 <strong>of</strong> the Insurance Act.<br />

In essence, the court found that the testator directed his mind first to his general assets<br />

and then to his insurance policies under the provisions <strong>of</strong> his will.<br />

[12] The applicant submits that <strong>Patricia</strong> <strong>Duffy</strong>’s last will and testament can be<br />

divided into two sections, namely, an insurance and RRSP section and a property<br />

section. There is merit in that submission. <strong>Patricia</strong> <strong>Duffy</strong> clearly sets out her<br />

insurance policies and RRSPs in the first page <strong>of</strong> her will, and then goes on in the<br />

ensuing four and a half pages to deal with a litany <strong>of</strong> specific bequests. That being so,

Page: 9<br />

did <strong>Patricia</strong> <strong>Duffy</strong> carve out <strong>of</strong> her estate the insurance policies in question and<br />

sufficiently designate them for the benefit <strong>of</strong> the applicant?<br />

Analysis<br />

[13] It is not for me to revisit the decision <strong>of</strong> DesRoches C.J. that <strong>Patricia</strong> <strong>Duffy</strong>’s<br />

letter <strong>of</strong> January 7, 2002 constitutes her last will and testament. I accept that finding.<br />

What I must determine is what was her true intention with respect to her life<br />

insurance policies. From the foregoing discussion <strong>of</strong> the law, it is clear that <strong>Patricia</strong><br />

<strong>Duffy</strong> could change the beneficiary <strong>of</strong> her life insurance policies and that she could<br />

do so by a designation in her will. In October, 2001, she had clearly indicated the<br />

applicant was to be the beneficiary <strong>of</strong> the Moore Policy. Then in her will, she refers<br />

to the life insurance policies followed by the statement “$200,000 payable to estate”.<br />

Stopping there, it would appear she changed the beneficiary on the Moore Policy<br />

from the applicant to her estate and included in that designation the Pitney Bowes<br />

Policy. But her will does not end there. She proceeds to list her RRSP holdings,<br />

followed by the statement in bold type: “Charles <strong>Duffy</strong> is the benefactor for my life<br />

and LTD insurance as well as my rrsps.”. This statement appears to be at odds with<br />

her earlier reference to having the proceeds <strong>of</strong> her life insurance policy payable to her<br />

estate.<br />

[14] After reflecting on the law relevant to the construction <strong>of</strong> a will, with particular<br />

reference to the words chosen by <strong>Patricia</strong> <strong>Duffy</strong> to constitute her last will and<br />

testament, I am <strong>of</strong> the view that her reference to “$200,000 payable to estate” does<br />

not amount to a declaration. Further, her later statement: “Charles <strong>Duffy</strong> is the<br />

benefactor for my life and LTD insurance as well as my rrsps” constitutes a separate<br />

insurance declaration designating the applicant as the beneficiary <strong>of</strong> all her life<br />

insurance policies. Such a finding is consistent with <strong>Patricia</strong> <strong>Duffy</strong>’s earlier clear<br />

designation <strong>of</strong> the applicant as beneficiary <strong>of</strong> the Moore Policy. It is also consistent<br />

with her use <strong>of</strong> the word “benefactor” in relation to the applicant in conjunction with<br />

her life insurance policies, and her use <strong>of</strong> the words “benefactor” and “beneficiary”<br />

interchangeably in another part <strong>of</strong> her will. That appears on p. 5:<br />

Should I also be the beneficiary <strong>of</strong> Ron’s life insurance in the amount <strong>of</strong><br />

$100,000. He is to change his benefactor, otherwise, $40,000. each is to be<br />

put in trust for Tiffany and Draper to be collected on their 30 th birthday.<br />

The balance is to be used for funeral services.<br />

I conclude from reading the entire will that Ms. <strong>Duffy</strong> did not distinguish between the<br />

terms “benefactor” and “beneficiary”. When she referred to the applicant as “the<br />

benefactor for my life and LTD insurance...”, she meant “beneficiary”.<br />

[15] At the hearing <strong>of</strong> this motion, the court was advised the Moore Policy was so

Page: 10<br />

described because “Moore” was <strong>Patricia</strong> <strong>Duffy</strong>’s employer at the time. She left that<br />

employment on May 30 th , 2002 to go to work with “Pitney Bowes”. She died on June<br />

19 th , 2002 having just made the transition from one employer to another. I was also<br />

advised by counsel that the policy <strong>of</strong> accidental life insurance in the amount <strong>of</strong><br />

$115,000.00 was not transferred to her new employer, thereby leaving only the two<br />

life insurance policies in question here totalling $85,000. I am further advised when<br />

one totals the specific cash bequests set out in the last four and a half pages <strong>of</strong> her<br />

will, the final figure approximates $115,000. Unfortunately, the accidental life<br />

insurance <strong>of</strong> $115,000 was not in force at the time <strong>of</strong> <strong>Patricia</strong> <strong>Duffy</strong>’s death.<br />

[16] One might conclude it was <strong>Patricia</strong> <strong>Duffy</strong>’s intention to give all <strong>of</strong> her life<br />

insurance proceeds to the applicant and then charge him with the responsibility <strong>of</strong><br />

taking care <strong>of</strong> each <strong>of</strong> the specific bequests. I believe such a conclusion is<br />

reasonable. If successful in this motion, the applicant clearly intends to carry out his<br />

sister’s wishes. He says so in his affidavit filed in support <strong>of</strong> his motion:<br />

6. It is my contention that the proceeds <strong>of</strong> both insurance policies should<br />

be payable directly to me and not to the estate <strong>of</strong> my sister. That<br />

notwithstanding my claim, I have acted as Executor <strong>of</strong> the <strong>Estate</strong> <strong>of</strong> my sister<br />

to the best <strong>of</strong> my ability and that in doing so, I have incurred personal<br />

expenses in the amount <strong>of</strong> $17,660.93.<br />

7. THAT there are other expenses <strong>of</strong> the estate which remain unpaid.<br />

8. THAT in the event this Honourable Court grants my request to have the<br />

insurance funds payable to me in my own right, it is my intention to carry<br />

out the wishes <strong>of</strong> my sister as expressed in her letter to me <strong>of</strong> January 7,<br />

2002 so far as possible after reimbursing myself for expenses personally<br />

incurred on behalf <strong>of</strong> my sister’s estate.<br />

[17] None <strong>of</strong> the beneficiaries named in <strong>Patricia</strong> <strong>Duffy</strong>’s will opposed the motion,<br />

nor did any <strong>of</strong> the creditors. Counsel advised that the creditors had been notified <strong>of</strong><br />

the motion hearing and indicated to counsel they were not sure if they were going to<br />

appear or not. The fact is no one appeared at the hearing <strong>of</strong> this motion to object.<br />

[18] When looked at in context, it appears to me that <strong>Patricia</strong> <strong>Duffy</strong> had great trust<br />

in the applicant and intended that he be the beneficiary <strong>of</strong> all her life insurance<br />

policies. She then trusted that he would have sufficient funds to attend to the specific<br />

cash bequests which she set out in her will. That would have been the case had her<br />

accidental life insurance policy been in force, but that fact in no way detracts from her<br />

intention to give all the proceeds <strong>of</strong> her life insurance policies to the applicant.<br />

[19] If I am wrong in concluding that the words “$200,000 payable to estate” is not<br />

a declaration as contemplated by s. 119 <strong>of</strong> the Insurance Act, then I find the words

Page: 11<br />

“Charles <strong>Duffy</strong> is the benefactor for my life and LTD insurance as well as my rrsps”<br />

is a later declaration revoking the declaration to estate and substituting Charles <strong>Duffy</strong><br />

as beneficiary.<br />

Conclusion<br />

[20] In my view, the last will and testament <strong>of</strong> <strong>Patricia</strong> <strong>Duffy</strong> contains a life<br />

insurance declaration naming the applicant as beneficiary <strong>of</strong> all <strong>of</strong> her life insurance<br />

policies. An order will issue directing the proceeds <strong>of</strong> the insurance policies held in<br />

trust by the court, together with accrued interest, be paid out directly to the applicant,<br />

Charles <strong>Duffy</strong>.<br />

November 12, 2004<br />

____________________________________<br />


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