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FATAL INJURIES - Claim by estate - Third party claims

Monday, March 25, 2019 @ 11:47 AM  


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Appeal by the Higgins Estate and family members from a judgment finding that their lost inheritance was not compensable under the Fatal Accidents Act. Caroline Higgins, age 46, was killed in a tragic motorcycle and pedestrian action involving the respondent, Arseneau. The respondent's motorcycle hit Caroline on the sidewalk while she jogged. Caroline was unmarried, without children, and worked as a lawyer. Her Will left the entire residue of her Estate to a disabled niece via Trust. The Executor had absolute discretion to use as much of the Trust income and capital for the benefit of the niece as deemed advisable. In the event the niece passed away prior to exhaustion of capital and interest, the remainder transferred to certain named family members. The underlying action sought to recover Caroline's post-death loss of income from the respondent. The appellants argued that their interest in the remainder vested when Caroline died, and therefore they had a reasonable expectation of inheritance once the niece passed away. The trial judge found that the appellants did not have a reasonable expectation of benefitting from Caroline's estate. The appellants appealed.

HELD: Appeal dismissed. The trial judge did not err in declining to answer the question of vesting. As the trial judge found, the issue of whether the estate vested was not critical to the decision of whether there was any evidence of the appellants having a reasonable expectation of deriving a benefit from Caroline's estate. The proper issue for determination was whether the appellants had any reasonable expectation of pecuniary benefit during their lifetimes that was frustrated by Caroline's premature death. The trial judge appropriately concluded that any such reasonable expectation was speculative given the contingencies involving the exhaustion of trust assets, the appellants' ages, and whether Caroline might have one day married or changed her Will. A misstatement of law regarding the burden of proof did not justify appellate intervention given the overall soundness of the trial judge's conclusion.

Higgins Estate v. Arseneau, [2019] N.B.J. No. 43, New Brunswick Court of Appeal, M.E.L. Larlee, K.A. Quigg and L.A. LaVigne JJ.A., February 21, 2019. Digest No. TLD-March252019001