J. 1998 S.H. No. 151846C IN THE SUPREME COURT OF NOVA SCOTIA IN THE MATTER OF: The Testators’ Family Maintenance Act, R.S.N.S., c. 465 and IN THE MATTER OF: The Matrimonial Property Act, R.S.N.S. 1989, c. 275, BETWEEN: INDERJEET SANDHU and ROBERT STREET and MADAN KAPAHI, Executors of the Last Will and Testament of Rajbir Singh Sandhu, deceased Defendants HEARD: at Halifax, Nova Scotia, before The Honourable Mr. Justice Jamie W.S. Saunders, on November 30, December 1, and 3, 1998 DECISION: May 10, 1999 COUNSEL: Kevin MacDonald, solicitor on behalf of the Executors Peter Rumscheidt, solicitor on behalf of Dr.Gurpreet Sandhu Roberta J. Clarke, Q.C., solicitor on behalf of Dr.Inderjeet Sandhu Timothy Matthews, Q.C., solicitor on behalf of of the residuary beneficiaries: Françoise Heve, Philippe Cendres Michel Cendres, and charity, Petites Soeurs des Pauvres D. Michael Willcock, solicitor on behalf of the 5th residuary beneficiary, the Mother Theresa of Calcutta Missionaries of Charity SAUNDERS, J. PROCEEDINGS: Three separate actions were commenced following the death of Rajbir Singh Sandhu on August 31, 1997. The first involved Proof in Solemn Form (the “probate action”) identified as 1998, Probate File No. 48976. The second action was commenced by Dr. Gurpreet Sandhu who claimed to be the son of the late Rajbir Singh Sandhu and sought entitlement to his late father’s estate by 1998, S.H. No. 151158C. The third action was taken by Inderjeet Sandhu who claimed to be the wife of the late Rajbir Singh Sandhu and sought entitlement to her late husband’s estate by 1998, S.H. No. 151846C. Following certain pre-trial communications among counsel and discovery examinations of important witnesses, it became obvious that there were circumstances surrounding Professor Sandhu’s wills and death which might reasonably be considered suspicious. Several procedural agreements were reached. By consent, proof in solemn form would be required, with the case to be tried by Justice of the Supreme Court of Nova Scotia, sitting in Probate. Jurisdiction to hear such case flows from the Probate Act, and is based on the historic statutory, common law and equity authorities of the Probate Court, pre-confederation court modelled on the English Probate Court. By contrast, jurisdiction with respect to the relief claimed by Gurpreet Sandhu and Inderjeet Sandhu (in the second and third actions, respectively) pursuant to the Testators’ Family Maintenance Act and the Matrimonial Property Act, is reserved to the Supreme Court of Nova Scotia. These matters cannot be combined into one action or proceeding. They may be heard together, with the consent of all parties and the approval of the presiding judge, acting in both his Probate and Supreme Court roles, but they remain separate, jurisdictional proceedings. Counsel for all parties agreed that there ought to be single hearing of all issues so as to avoid repetition of viva voce testimony and duplication of effort, thus saving time and expense. It was further agreed that the evidence placed before me at the hearing might be applied to all three proceedings. At series of pre-trial conferences counsel established, under my direction, an efficient order for calling and questioning witnesses. Initially it was thought that separate decisions would be filed in the three actions. However, mid-trial partial settlement obviated the need for such an approach. There were myriad of factual and legal issues to be considered but perhaps the three most central matters to be decided at trial were: (1) Proof in Solemn Form of the Last Will and Testament of Rajbir Singh Sandhu, challenged on the basis of his (alleged) testamentary incapacity, (2) The claim of his “son” Gurpreet Sandhu under the Testators’ Family Maintenance Act, and (3) The claim of his “wife” Inderjeet Sandhu under the Testators’ Family Maintenance Act and the Matrimonial Property Act and the Pension Benefits Act. To put these distinct claims in context one must briefly recall the extraordinary life of the late Rajbir Singh Sandhu. BRIEF BACKGROUND TO HIS LIFE The circumstances arising from the evidence at trial could form the basis of marvellous novel or film. Truth is often much more compelling than fiction. Professor Rajbir Singh Sandhu (hereinafter “Rajbir”, “Raj” or “Professor Sandhu”) was born in India on September 30, 1937. He studied law. His parents were devout Sikhs. On March 6, 1960 Professor Sandhu and Inderjeet were married. They resided in New Delhi, India where Professor Sandhu taught law. Their son Gurpreet was born on December 4, 1961. In July, 1963 Professor Sandhu left New Delhi to study at the Yale Law School in New Haven, Connecticut. While in America he met Marcelle Cendres. They began relationship. Inderjeet and Rajbir Sandhu separated in 1967. Rajbir and Marcelle Cendres participated in what some described as civil marriage ceremony at the French Embassy in New Delhi in 1968. Immigration records show that in 1970 Professor Sandhu came to Canada. He named Marcelle as his wife. He made no reference to Inderjeet or Gurpreet. For period of approximately five years from 1968 to 1973, Professor Sandhu had no contact with his son. Through efforts initiated by Inderjeet, Gurpreet re-established communication with his father. They remained in contact on regular basis for the remainder of Professor Sandhu’s life. Rajbir often visited India to see family and friends and on each occasion he would spend time with both Inderjeet and Gurpreet. From the early 1970's until their respective deaths in 1997, Professor Sandhu and Marcelle were professors at Dalhousie University. Throughout their time in Halifax, they represented to friends, colleagues and the community at large that they were husband and wife. But for one or two close friends in Canada (who learned the “truth” quite by accident) they did not tell anyone of the existence of Inderjeet or Gurpreet. In 1987 Gurpreet came to the United States to study medicine at the Mayo Clinic in Minnesota. He married Nicole Punkay Sandhu in India on August 8, 1993. They continued to live in Minnesota, both pursuing careers in molecular biology and medicine. Professor Sandhu and Marcelle visited Gurpreet and Nicole in Minnesota on several occasions. Inderjeet Sandhu claims that she was never notified either verbally or in writing of any intention by Professor Sandhu to obtain divorce. There is some evidence suggesting that Professor Sandhu became Muslim in 1968 so as to “divorce” himself from Inderjeet in order to marry Marcelle. Others suggest that Rajbir never “became” Muslim and that any such “evidence” really points to an elaborate fraud on the part of Rajbir to legitimize his subsequent “marriage” to Marcelle and the lives they subsequently assumed together as “husband and wife” in Nova Scotia. In December, 1996 Marcelle was diagnosed with ovarian cancer. Her health deteriorated until her death on August 2, 1997. Throughout Marcelle’s illness Professor Sandhu was grief-stricken. His family physician, Dr. Arthur Trenholm diagnosed Professor Sandhu as suffering from depressive disorder. In late July, 1997 Professor Sandhu consulted with Frank Powell, Q.C. regarding certain changes he and Marcelle wished to make to wills which they had drafted in 1996. After meeting with them and obtaining instructions, Mr. Powell completed the new wills and attended the hospital where the wills were executed on July 25, 1997. Pursuant to their reciprocal July wills, Professor Sandhu and Marcelle were to be each other’s sole beneficiary in the event of the other’s death. If one predeceased the other, the residue was to be divided into ten shares with five shares to go to “Gurpreet” and one share each to Françoise Heve; Philippe Cendres; Michel Cendres (the niece and two nephews of Marcelle who reside in France); the Petites Soeurs des Pauvres (a French, Roman Catholic charitable order); and the Mother Theresa of Calcutta Missionaries of Charity (a Roman Catholic charitable order based in India). When briefing Mr. Powell, Professor Sandhu described Gurpreet as being distant cousin who lived in India. Following Marcelle’s death on August 2, 1997, Professor Sandhu’s emotional state deteriorated. His friends testified at trial as to his health and behaviour. Raj was also in telephone contact with Gurpreet, Nichole and Inderjeet both before and after Marcelle’s death. Those persons also testified as to what they considered to be unusual behaviour on his part, particularly after Marcelle’s death. On August 22, 1997 Professor Sandhu met again with Mr. Frank Powell for the express purpose of making certain changes to his July 25, 1997 will. Aside from deleting references to Marcelle, the major change to the July will was the deletion of Gurpreet completely as residuary beneficiary. When Mr. Powell inquired as to why Gurpreet was being deleted, Professor Sandhu advised that Gurpreet was distant cousin with whom he had had little contact and whose exact whereabouts were unknown. Mr. Powell revised the will as instructed. This second will was executed August 22, 1997. Pursuant to its terms, the residue of the estate was to be divided into five equal shares among Françoise Heve, Philippe Cendres, Michel Cendres, the French charity and the Indian charity. Ten days later Professor Sandhu was found dead at his cottage in Piggott Lake. The Medical Examiner’s autopsy report revealed number of drugs in Professor Sandhu’s system. Whether he committed suicide or suffered an accidental death was impossible to prove or rule out with certainty. Rajbir Sandhu had been prescribed medication for ischemic heart condition and had been taking other painkillers, sedatives and blood pressure pills. The Warrant of Appraisement, Inventory and Valuation filed by the Executors on January 20, 1998 assigns value of $3,090,257.00 to Professor Sandhu’s estate. It would appear that additional assets have been located since, such that the gross value of Rajbir Sandhu’s estate is even higher than that listed in the Appraisal. MID-TRIAL AGREEMENT Mid-way through the trial counsel announced partial settlement. There would no longer be any challenge to the August 22, 1997 will. The parties agreed that it had been proven in solemn form. Counsel advised that they had settled the claim (1998, S.H. No. 151158C) brought by Dr. Gurpreet Sandhu under the Testators’ Family Maintenance Act such that he would receive 35 percent of his late father’s estate with the remaining 65 percent to go to the residuary beneficiaries. This left for resolution the remaining claim for relief (1998, S.H. No. 151846C) brought by Dr. Inderjeet Sandhu. With issues of testamentary capacity and proof in solemn form out of the way, Roberta Clarke, Q.C. then took the lead as counsel for her client, the plaintiff, Dr. Inderjeet Sandhu, supported by Peter Rumscheidt on behalf of Inderjeet’s son, Dr. Gurpreet Sandhu. Timothy C. Matthews, Q.C. and Kevin MacDonald then took on the role as counsel for the “defendants” representing the interests of the residuary beneficiaries, and the proctors of the estate, respectively. All counsel agreed that each of the parties’ costs were to be paid out of the estate on solicitor/client basis. ANALYSIS OF THE CLAIM ADVANCED BY INDERJEET SANDHU To understand the various claims advanced by Inderjeet Sandhu it is necessary to put them in context. To do that one must review in some detail the separate lives lived by Rajbir and Inderjeet Sandhu, he in Canada and she in India. While certain issues were resolved, in the middle of trial, when the challenge to Rajbir’s testamentary capacity was abandoned and his son Gurpreet’s law suit was settled, some of the evidence led in both respects bears repeating as it impacts upon the continuing claims for relief sought by Inderjeet Sandhu. Inderjeet was born in New Delhi, India in 1935. She met Rajbir in 1958. Their families lived about mile apart. Both households were devout Sikhs. They agreed to marry. It is the custom that at formal engagement party the bride’s family gives gifts to the groom’s family. The groom’s family then presents gifts to the bride’s family at the wedding ceremony. Rajbir and Inderjeet were married in formal Sikh ceremony at her mother’s house on March 6, 1960. Inderjeet was medical intern at the time of their marriage. Raj had finished his first law degree. He worked for law firm in New Delhi and also taught part-time as professor at the Faculty of Law. As was the tradition, they moved in with his parents and lived in their home. Their son Gurpreet was born December 4, 1961. Inderjeet worked as doctor while pregnant up until week before delivery. Five weeks after the birth of their son, she returned to work and embarked on post graduate studies, all the while living with Raj’s parents. She received small stipend from her work as doctor but all of their living expenses were assumed by Raj’s parents. In April, 1963 Raj received Fulbright scholarship to attend Yale University in New Haven, Connecticut. He intended to study for his doctorate in law. Inderjeet planned to join him in the United States and find work as doctor. To do that she had to fulfill the requirements of the foreign student education equivalence examination. She studied and passed the exam and applied for residency in the United States. Raj’s Fulbright scholarship was modest one and the laws in India were such that its citizens were prohibited from sending money out of the country. Consequently it was decided that Inderjeet would have to move to America in order to earn living and help support their family. Raj went first. They communicated by letters and occasional telephone calls. Inderjeet hoped to study onctology and accepted position in Buffalo, New York. Unfamiliar with North American geography she wasn’t sure how far Buffalo was from New Haven, Connecticut but she and Raj were confident that they could visit each other on weekends as their circumstances would permit. Raj was in no position to send money back to her and Gurpreet in India. The only money he had was his scholarship. Up until the time that she and Gurpreet moved to Buffalo Raj’s parents supported them. In May, 1965 Raj’s mother became ill. Raj flew home to India. She died in early June, 1965. Inderjeet was obliged to report for duty in Buffalo by July 1. Raj was detained in India about ten days attending to his late mother’s estate. She had been successful gynecologist. Upon her death he inherited most of the property held in her name. The tradition was for the mother to pass on her estate to the children. The evidence suggests that Raj’s mother owned substantial jewellery and cash at the time of her death and left considerable wealth to Raj by her Will. After Inderjeet and their son Gurpreet moved to Buffalo they would meet Raj on weekends and holidays. They lived and travelled together as man and wife. He introduced them as such to his friends in America. All of this was corroborated, at trial, by photographs of the three of them shown vacationing and picnicking with their American friends. While visiting in New Haven, Inderjeet heard rumours that Raj was seeing “French woman named Marcelle”. She confronted him. He denied an affair and insisted that they were just friends. Out of concern for their marriage, Inderjeet asked for transfer from Buffalo to hospital in New Haven, so that she could be closer to Raj. She and Gurpreet moved into Raj’s apartment and she joined the staff at St. Raphael Hospital. She continued to hear rumours about Marcelle. They argued lot about what this woman was doing to their marriage. She urged Raj to “come to his senses” and “be normal husband”. Raj told her to stop “overreacting”. In December, 1965 after fulfilling six months of her residency requirements Inderjeet and Gurpreet returned to India and moved back in with Raj’s parents in New Dehli. She found work in India and resumed her post graduate studies. By January, 1967 she qualified as specialist in internal medicine. Raj continued to communicate with her by letter and telephone. He promised that when he finished his doctoral studies at Yale he would return to India. Inderjeet next saw Raj in September, 1967 when he returned to India. He said that he had been awarded his LL.M from Yale. They spent three “normal” weeks together as family. Then household servant informed Inderjeet that Raj was seeing “that French lady”. Inderjeet could tell that something was wrong. She confronted her husband. Raj put the blame on Marcelle for “following” him back to India. There were heated arguments. Inderjeet urged her husband to end the affair. Finally Raj told Inderjeet to “get out of his father’s house”. Given the traditions and customs of the time Inderjeet had “no choice” but to take Gurpreet and flee. With nothing but the clothes on their backs they moved in with her own parents. She lost all personal contact with her husband until 1975. The story now shifts to Canada where we pick up the lives of Rajbir and Marcelle. Documentation from the Canadian Immigration Office shows that on September 13, 1970 Rajbir applied for landed immigrant’s status. He named Marcelle M. Sandhu, age 38, of 5222 Green Street, Apartment 28, Halifax, Nova Scotia as his wife. There is no reference whatsoever to Inderjeet or Gurpreet Sandhu. The space for “Religious Denomination” is left blank. Rajbir states that upon arrival he will have “$32,000" cash. For the next 27 years Rajbir and Marcelle lived together, and described themselves to others, as husband and wife. Each was employed as full professor in separate faculties at Dalhousie University. Rajbir taught in the Business department. Marcelle lectured in languages. By all accounts Rajbir loved Marcelle and was devoted to her for the rest of his life. Frank Powell, Q.C. was first introduced to them in June, 1993. He had put his condominium up for sale. Rajbir approached him to buy it and introduced Marcelle as his wife. After that property closing Mr. Powell next heard from Professor Sandhu in July, 1997. Rajbir explained that his wife was dying and that they had drawn up Wills themselves which they wanted Mr. Powell to review. He met with them and studied the reciprocal Wills each had prepared. Eventually Mr. Powell received instructions to prepare new Wills which, with the exception of certain book royalties Marcelle was getting, “mirrored” each other’s reciprocal bequests. Essentially each left everything to the other and if both died then their Wills provided for “gifts over” to the named residual legatees. “Gurpreet Singh Sandhu” was named the major residuary beneficiary, someone Rajbir identified to Mr. Powell as being his “cousin in India”. Mr. Powell was perfectly satisfied as to the capacity of both Marcelle and Rajbir and the “July wills” were duly executed. Around August 10, 1997 Rajbir telephoned Mr. Powell to say that his wife had died. He sought Mr. Powell’s advice as to whether he would have to do anything to probate his late wife’s estate. About week later they spoke again at which time Rajbir told Mr. Powell that he was thinking of making revision to his own will, specifically to delete the bequest to his “cousin in India”, Gurpreet Sandhu. They met in Mr. Powell’s office on August 22 where again Rajbir confirmed his instructions to revise his July will both to account for Marcelle’s death and to request that the bequest to Gurpreet be deleted. When Mr. Powell asked for further particulars, Rajbir said that Gurpreet was distant cousin of his, that they had been out of touch for long time and that he did not know his whereabouts. To this Mr. Powell replied that Mr. Rajbir had no legal or moral obligation to provide for such distant relative. Mr. Powell testified that Rajbir and Marcelle seemed “very close”, that Rajbir had told him he had “no family, no children of his own” and that it was going to be difficult to adjust without Marcelle. He pressed Rajbir to make sure he understood that if he died the whole of his estate would pass to Marcelle’s relatives and the two named charities. There was no question in Mr. Powell’s mind that Rajbir understood precisely what he was doing. Mr. Powell’s evidence coupled with testimony from friends and his family physician Dr. Trenholm leave little doubt that while naturally devastated by Marcelle’s death he was with their support coping and making plans for the future. His testamentary capacity was in no way affected. There is no basis for concluding that Rajbir’s death was caused by suicide. To the extent it bears at all upon these proceedings, am content to say that while the immediate cause of his death was mixed drug overdose one ought not to speculate whether such an overdose was deliberate or accidental. Friends were unanimous in their praise and fond recollection of Rajbir and Marcelle. Both were described as being very articulate and intelligent. Some friends recalled Rajbir as being “a very sweet man, not especially talkative, rather introverted, very private and not prone to openly express his feelings”. By contrast Marcelle seemed “more open” and “more dominant than Rajbir”. To all of their friends they seemed genuinely happy and loving couple. It does not speak ill of Rajbir to observe that he lived double life. Some of his closest friends who testified at trial expressed their dismay at his deception. Robert A. Street is one of the executors. He holds graduate degrees in law and business. He taught at the Dalhousie School of Business for 24 years and came to know Rajbir professionally and socially. He always knew Marcelle to be Rajbir’s wife. Mr. Street never heard word about “prior” marriage or son. It came as complete shock to him to learn at the funeral service for Rajbir that Rajbir left 35 year old son, Gurpreet. Madan Kapahi is another executor of the estate. He moved to Canada in 1967. Ironically he met Marcelle at Dalhousie when she approached him in January, 1968 to learn Hindi before she went to India to meet her fiancé Rajbir Sandhu and his family. She was then professor in the French department at Dalhousie. Later in the Fall of 1968 in Halifax she introduced Mr. Kapahi to “her husband Rajbir”. They began life-long friendship. He described them as “very unique”. Each was strong, affectionate and loving individual. They valued their privacy. Rajbir never disclosed that he had been married before or that he had son. Once Mr. Kapahi said he ran into one of Rajbir’s old law school friends from New Dehli who remarked “It’s too bad his first marriage didn’t work out .”. Mr. Kapahi never presumed to pry or pursue it. He met Marcelle’s brother and some of her other relatives who visited Canada from time to time. Rajbir and Marcelle took them touring in Nova Scotia. For some years Rajbir and Marcelle travelled to France every summer and stayed in farmhouse they acquired. When Messrs. Street and Kapahi searched Rajbir’s home after his death they found no photographs of Gurpreet or Inderjeet anywhere. Mr. Kapahi recalled that Rajbir taught Muslim law at Dehli University. He said Rajbir came from devout Sikh family. While he may not have been active in the Sikh temple in Halifax Mr. Kapahi said that Rajbir did not follow any other faith. Dr. Salba Rubilowicz has lived in Halifax the last 16 years. She is retired obstetrician/gynecologist. She first met Marcelle after enrolling for French classes in 1982. They became very close friends. Marcelle introduced Rajbir as her husband and both families spent great deal of time together. She, like other witnesses, confirmed the love and devotion between the two. When Marcelle was diagnosed with cancer Rajbir was desperate. He never left Marcelle alone. In late June when Marcelle’s chemotherapy was over she and Rajbir travelled to Loudres in France where they stayed about 10 days. Upon their return to Canada Marcelle was re-admitted to hospital where she remained two weeks before her death on August 2, 1997. Marcelle told Dr. Rubilowicz that she and Rajbir had met at Yale University and were married in New Delhi, India. As far as Dr. Rubilowicz was concerned Marcelle was Roman Catholic. She never implied that she had converted to any other faith. Her husband, Dr. Mieczyslaw Rubilowicz is retired opthomologist who echoed the same sentiments expressed by his wife. To them Rajbir and Marcelle were “always couple” and it came as huge shock to learn that Rajbir left son and wife. Dr. Krishna Ray is retired general surgeon who met Rajbir and Marcelle shortly after his moving to Canadian 1984. He and his wife Rachelle socialized frequently with the Sandhus. They never suspected that Rajbir had son or “other” wife. While Rajbir and Marcelle made happy life for themselves in Halifax, life proved difficult for Inderjeet in India. Her parents provided clothing, food and shelter for her and her son, Gurpreet. That and her meager salary as physician was all she had. As single mother looking after their son she could not afford the time away from home expected of medical specialist. She found employment as general practitioner at state-run insurance scheme. She worked part-time in order to accommodate their young son’s needs. In 1978 she switched employers to avoid transfer which would have prevented her from spending much time with Gurpreet. She remained with that employer until retirement in April, 1993. Throughout her career she worked as salaried general physician. described earlier how she came to be banished from her in-laws’ home when Raj ordered her out in 1967. Gurpreet testified that he remembered the day vividly. For him things “changed overnight”. He and his mother were forced out leaving his toys, clothes and even his pet dog behind. Gurpreet lived with his mother and grandparents from 1967 to 1984, when Inderjeet acquired her own small house. Later he emigrated to the United States for his studies at the Mayo Clinic. Eventually he obtained Ph.D in molecular biology and in June, 1997 commenced his residency in internal medicine. As noted, Inderjeet lost all personal contact with Raj from 1967 to 1975. However, she received letter from Raj dated January 5, 1968 in which Raj professed to have converted to Islam proclaiming himself to be “Muslim”. Raj wrote: “. therefore as your husband (I) command you to embrace Islam.” Inderjeet testified that she could not make any sense of this letter. She wondered if her husband had lost his mind. She did not respond to it. She surmised that it may have been written to provoke her in some way. Now, with benefit of hindsight, she and her son Gurpreet suspect that this was the first step in an elaborate fraud masterminded by Raj to in some way “legitimize” his “marriage” to Marcelle. Inderjeet, Gurpreet and other witnesses who appeared before me consistently refuted any suggestion that Rajbir had become Muslim. Their evidence is compelling. Inderjeet said that Raj came from devout Sikh family. He continued to worship at the Sikh Temples whenever he visited in India. On August 8, 1993 their son Gurpreet married Nicole. Raj and Inderjeet prepared the wedding announcement and invitation to reception (Exhibit 9) wherein they cordially invite their friends: “. to celebrate the wedding of their son Gurpreet .” (underlining mine) At Rajbir’s request, Inderjeet sent several of these invitations to Raj’s friends directly. It was full Sikh religious ceremony. Raj attended, identified himself to the Sikh priest as the father of the groom and fully participated at the wedding ceremony (as is documented in the photographs produced, Exhibit 2B). Inderjeet said that Muslim would never bow deferentially to Sikh holy book. Her husband bowed, knelt and performed all other traditions and customs any Sikh father would at Sikh ceremony. He sang Sikh verses and prayers during the ceremony. All of this was confirmed by Gurpreet and Nicole Sandhu. Further corroboration was provided by Sudesh and Swinder Bhalla, retired teacher and professional engineer who were very close friends of Raj and Marcelle during their years together in Halifax. The Bhallas are Sikh. They considered Raj to be Sikh. Raj accompanied Swinder Bhalla to the Sikh Temple where they worshipped together. Mr. and Mrs. Bhalla appear to be the only two persons in Canada who came to learn Raj’s secret: that he had left wife in India and that they had grown son. They discovered it by accident when visiting friends of their own in India in 1993. Their young son had been playing with other children, heard “the story” and came running in excitedly to inform his parents. Mr. and Mrs. Bhalla quieted him to avoid scene. On the return flight home Mr. Bhalla determined to find out the truth. Later that week they were invited to dinner at Raj and Marcelle’s home. Swinder asked Raj whether the rumours were true? Raj, in the presence of Marcelle, told Sudesh and Swinder Bhalla: “Yes, have wife and son.” Raj asked them how they learned and pleaded with them not to tell anybody else, adding “No one knows”. From that point forward, according to Mr. and Mrs. Bhalla, Raj often mentioned both Gurpreet and Inderjeet in conversation. He was generous in his praise of his son Gurpreet and how proud he was that he had become highly trained specialist in the United States. Raj also remarked how happy he was that his wife Inderjeet had not “put poison in my boy’s mind” about him. He acknowledged what fine job she had done in rearing him alone. The Bhallas never heard Raj or Marcelle say that Raj and Inderjeet had been “divorced”. It was not until 1984 that his mother showed Gurpreet the 1968 letter his father had written purporting to command her to become Muslim. To him it was patently ridiculous. He said that in the Sikh religion every faith is equal, every person has equal rights and one cannot command another to do any such thing. Similar opinions were expressed by other witnesses at trial. For example, on cross-examination Mr. Bhalla said that it would be preposterous to expect Sikh woman to “obey command” from her husband either in 1968 or 1999. No husband would ever seriously suggest to his spouse that she should convert to Islam and expect his wife to “obey”. In the Sikh faith important decisions are made mutually. Witnesses testified that the so-called “Muslim marriages” have become common type of fraud in India, such scams perpetrated so as to enable man to have more than one wife. Gurpreet felt strongly that his late father invented the letter as scam in order to bolster his “marriage” with Marcelle, knowing full well that the State of India would never accept such “fraud”. He and other witnesses testified that Indian authorities are now clamping down on such bogus “weddings”. There were two other events which impact upon Inderjeet’s outstanding claims and therefore require some elaboration. It is hardly surprising that after Rajbir banished Inderjeet and their son from his parents’ home an estrangement occurred. But in 1973 Inderjeet learned that her father-in-law longed to see her and his grandson Gurpreet. She telephoned and that same evening he came by to visit. The three resumed close relationship until his death in 1992 at 93 years of age. In the 20 years before his death Inderjeet also received considerable correspondence from her father-in-law (some of which was collected and introduced at trial). He always referred to Inderjeet as his “daughter” and signed his letters “Your affectionate daddy”. It wasn’t until 1975 that Inderjeet saw Rajbir again. He had come to visit Gurpreet. During one such visit he asked Gurpreet if he thought his mother would have any objection to seeing him. Gurpreet replied “Why don’t you ask her?” upon which Inderjeet came out from another room, met Raj face to face, and they talked through the night. They continued to communicate on regular basis for the rest of Raj’s life. Whenever he came to India typically every year or every other year he always dropped in to see Inderjeet. In 1984 an important event on the world stage had profound effect upon the Sandhu family. Prime Minister Ghandi was assasinated by her own Sikh bodyguards. This treason sparked rampage of killings, burnings and riots. Gurpreet testified that 5,000 Sikhs were murdered. He and his mother were forced into hiding because they were known as the Sikhs who lived on their street. Inderjeet was terrified that enemies would hunt down their son and kill him. They telephoned Raj in Halifax begging him to do something to provide safe haven for their son. Rajbir broke down and sobbed that he couldn’t do anything. He admitted that he had lied on his immigration papers when he entered Canada. He had never declared Inderjeet as his wife or Gurpreet as his son. He tearfully refused their request to find safe passage out of India for Gurpreet. He feared deportation or some other serious consequence if Gurpreet’s existence became known, thus revealing that he had provided incomplete and/or false information to immigration officials when entering Canada in September, 1970. According to Inderjeet and Gurpreet, Raj considered his refusal to help as amounting to treachery on his part. Guilt from failing to protect his son in the face of such imminent danger haunted Raj for the rest of his life. It came to the surface at Gurpreet’s wedding to Nicole in India in August, 1993. Raj asked to see them privately and met with them for two hours on the day of their wedding. In the midst of Nicole, Inderjeet and Gurpreet, Raj broke down and wept. He was very remorseful. He told them that his whole life was “lies” and that he had “ruined his own life and theirs too”. He felt trapped. He did not know how to undo the damage but said he would try. Nicole vividly recalled Raj telling them: “I cannot believe that because of me, my son might have been dead, instead of married today” alluding to his refusal in 1984 to offer protection and safe haven to his son. It was necessary to provide such detail from the lives of these principal characters so as to lend meaningful context to the analysis and treatment of the claims advanced by Inderjeet Sandhu. turn now to consideration of those demands. INDERJEET SANDHU’S CLAIMS Dr. Inderjeet Sandhu claims entitlement to portion of Rajbir Sandhu’s estate under all of the following statutes: Matrimonial Property Act, R.S.N.S. 1989, c. 275, and Pension Benefits Act, R.S.N.S. 1989, c. 340, as amended 1992, c. 27; 1993, c. 35, and Testators’ Family Maintenance Act, R.S.N.S. 1989, c. 465. Her claims are incremental, in other words include demands under each of those statutes and are not expressed as alternative claims. THEORIES OF THE PARTIES Position of Dr. Gurpreet Sandhu As noted, Dr. Gurpreet settled his claim brought under the Testators’ Family Maintenance Act mid-way through the trial. The terms of the settlement as disclosed by counsel were such that Dr. Gurpreet Sandhu will receive 35 percent of his late father’s estate with the remaining 65 percent to go to the residual legatees. In final argument, his counsel Mr. Rumscheidt acknowledged that notwithstanding the fact that any award received by Inderjeet would have negative impact upon his own settlement, he fully supported the submissions and demands advanced by his mother’s counsel. Position of Dr. Inderjeet Sandhu Briefly stated Dr. Inderjeet Sandhu says she satisfies the threshold definitions of “spouse” under both the Matrimonial Property Act and the Pension Benefits Act, and “dependent” under the Testators’ Family Maintenance Act. There are no statutory criteria disqualifying her from entitlement. She and she alone undertook the rearing and education of their son without any financial contribution whatsoever from Rajbir Sandhu. Fairness, equity and all three legislative schemes are said to justify substantial entitlement to her late husband’s estate. Admittedly much of Rajbir Sandhu’s wealth was acquired after he and Inderjeet had separated. But, he had substantial assets before he and Inderjeet parted and much of it came into his hands through her dowry from her parents on their wedding day. Such wealth must be taken into account when assessing Inderjeet’s entitlement to division of matrimonial assets. While it may be hard to trace this wealth from their wedding in 1960 through to their separation in 1967 up to the time of Raj’s death in 1997, difficulty of assessment is no bar to relief. The defendants have not proven that Rajbir and Marcelle were “married”. Under the law of India non-judicial divorce is possible as between two spouses provided both are Muslim. If only one spouse is Muslim then the marriage can only be dissolved by judicial proceedings. The unilateral talaq divorce of the wife by the husband requires that notice be given to the wife (Agreed Statement of Facts Exhibit No. 1, clauses and 7). Obviously Indeerjeet is not Muslim. The sheer weight of the evidence in this case is that Rajbir was and remains Sikh. Indeerjeet never received any notice that she was “divorced”. In India Rajbir acknowledged that she was his wife and the mother of their son. He assisted her in obtaining her state-funded pension after retiring as physician. Thus, Inderjeet Sandhu says that the defendants have failed to prove that she and Rajbir were not married. Rajbir devised an elaborate scheme to have more than one wife. Despite his good qualities he perpetuated fraud and lived most of his life as bigamist. Since Rajbir had not retired at the time of his death, his surviving spouse is entitled to minimum of 50 percent of the comminuted value of his accrued pension at Dalhousie. Since Marcelle Cendres predeceased Rajbir, we do not have to speculate about two competing claims from two surviving “spouses”. There is corroborative evidence confirming Rajbir’s promise to “take care of” Inderjeet. Since she would have no way of knowing about the applicability of the Matrimonial Property Act or the Pension Benefits Act to her situation until after Rajbir’s death, the doctrine of laches is no bar to her claim to statutory relief. The fact that Gurpreet has settled his claim has no bearing on his mother’s independent action. Rajbir failed to adequately provide for Inderjeet Sandhu in his August, 1997 will. The Court should stand in the shoes of “wise and judicious” spouse and make sufficient provision for her as “dependent” of the testator; woman who sacrificed her whole life in order for their son to enjoy very comfortable standard of living. Position of the Residual Legatees None of the three statutes upon which the plaintiff relies were designed or intended to right old wrongs. It is an unhappy fact that their marriage dissolved in the mid-60's. Whatever sympathy one might have for Inderjeet’s situation, fault is irrelevant. An abandoned spouse must get on with his or her life. Dr. Inderjeet Sandhu did just that. She carried on. She became self-reliant. She never asked her husband for financial assistance because she did not need it. She came from well-to-do family of her own. They supported her. Not having asked Rajbir for any help during his lifetime, why should she expect any now? Their “marriage” was over long ago. More than 30 years is very long time. Laches has to work against Dr. Inderjeet Sandhu and stand as bar to her claim for relief. One should not speculate about the 1968 marriage in India between Rajbir and Marcelle. There is no evidence to warrant the conclusion that it was fraud. One should not “convict” Rajbir Sandhu on such flimsy evidence. The trail is cold. It is idle speculation to think that after Marcelle’s death Rajbir was going to change everything and make things right for Inderjeet. Even if he inferred such thing, his actions never matched his words. Marcelle died August 2, 1997. Even if Raj really felt that he had made mess of his own life, he had time to make amends. He consulted with Frank Powell, Q.C. and prepared new will. Yet in this new will he gave nothing to Gurpreet. And never in any will did he give anything to Inderjeet. The vast bulk of Rajbir’s estate was accumulated long after his separation from Inderjeet. None of it qualifies as matrimonial assets. In equity, tracing of these “assets” would be impossible. The Dalhousie pension plan never contemplated “two spouses” co-existing. Any such interpretation would have disasterous results. It would become “lottery” of who dies first. None of these legislative schemes were ever intended to apply to relationship that ended more than 30 years ago. Rajbir Sandhu knew about Inderjeet’s financial situation and the Court ought to infer that he was satisfied with her circumstances. He did not feel that she was in need of any help. There must be point when any moral or legal obligation ends. Position of the Proctors of the Estate Inderjeet Sandhu’s claim is “all or nothing”. Either she is entitled under all of the legislative schemes, or she is not. The proctors submit that there is no merit to any of her claims. However, this is an extraordinary case and may warrant unique approach. The proctors suggest middle ground opining that Inderjeet Sandhu may have legitimate claim on the basis of constructive trust and/or unjust enrichment. One might apply contractual model as workable solution; in other words under the statute of limitations one would have period of 10 years (6 years plus the “forgiveness” years 10 years). This approach would invite the Court to trace assets from the time of their wedding in 1960, determine what had been converted to their use as couple and subsequently Rajbir’s own use and then apply other factors including changing valuations for the price of gold and other jewellery and wedding gifts. Employing such method led the proctors to propose that fair and appropriate award (acknowledged as being entirely discretionary) to Inderjeet Sandhu would be $150,000.00 Canadian with any tax liability for such sum payable by the recipient. REASONS FOR JUDGMENT From the evidence at trial that accept, am prepared to find the following material facts: (1) Rajbir Sandhu and Inderjeet Sandhu were married on March 6, 1960 following traditional Sikh religious wedding ceremony; (2) Dr. Gurpreet Sandhu is the natural biological son of Rajbir and Inderjeet and was born in India on December 4, 1961; (3) Inderjeet never received any notice of any divorce proceedings contemplated or commenced by Rajbir; (4) gradual estrangement developed between Rajbir and Inderjeet on account of Rajbir’s extra-marital relationship with Marcelle Cendres; (5) The marital relationship between Rajbir and Inderjeet effectively ended in the autumn of 1967 when Rajbir banished his wife and young son from his parents’ home; (6) The evidence as to whether or not Rajbir and Marcelle went through legitimate civil marriage ceremony at the French Embassy in New Delhi, India on May 2, 1968 as result of which valid marriage certificate was issued, is inconclusive; am unable to decide on the basis of the evidence before me whether Raj and Marcelle were ever in fact legally married; (7) Rajbir and Marcelle met at time that Rajbir was studying law at Yale University. They fell in love and began relationship that lasted for the rest of their lives; (8) From at least the time Rajbir entered Canada in September, 1970, he and Marcelle lived together as husband and wife and portrayed themselves as such to friends and colleagues in Canada for 30 years. They were happy, loving and devoted couple; (9) From all outward appearances Rajbir remained member of the Sikh faith until his death in August, 1997. There is no persuasive evidence to seriously suggest that he had ever converted to Islam; (10) Inderjeet is Sikh; (11) There is no evidence whatsoever that Marcelle Cendres was ever Muslim. Persuasive evidence suggests she was Roman Catholic; (12) Inderjeet took on complete responsibility, financial and otherwise, for nurturing, loving and educating their son Gurpreet; (13) Rajbir was extremely proud of both Gurpreet, and Inderjeet for the job she did in rearing him; (14) Rajbir, in his own way, continued to inquire periodically of the health and well-being of Gurpreet and Inderjeet in an attempt to keep himself informed about important events in their lives; (15) Rajbir told both Gurpreet and Inderjeet on several occasions and in the presence of friends and other corroborative witnesses that if they ever needed financial assistance they need only ask and he would be happy to provide it; (16) Rajbir and Marcelle did not keep the existence of Gurpreet and Inderjeet secret from Marcelle’s closest relatives. (See Answers to Interrogatories, Exhibit 11] (17) When confronted by friends, Mr. and Mrs. Bhalla in Halifax, Rajbir admitted that Inderjeet was his wife and that Gurpreet was their son; (18) In India Rajbir made public pronouncements (for example the invitation to their son’s wedding; documentation he facilitated in order for Inderjeet to receive her state-funded pension) that Inderjeet was his wife and that Gurpreet was their son; (19) Rajbir failed to provide for Gurpreet in his August ‘97 will, or Inderjeet in any previous wills; (20) On July 25, 1997 Rajbir and Marcelle executed reciprocal wills; (21) On August 2, 1997 Marcelle died in Halifax hospital from the effects of ovarian cancer; (22) On August 22, 1997 Rajbir executed new will after consulting and instructing Frank Powell, Q.C.; (23) On August 31, 1997 Rajbir died in his cottage at Piggott Lake under circumstances that while suspicious were, ultimately, inclusive. have applied these and other facts to the legislative schemes and legal and equitable principles that arise in this extraordinary case. After much reflection reject Inderjeet Sandhu’s claims under both the Matrimonial Property Act and the Pension Benefits Act, but allow her claim under the Testators’ Family Maintenance Act. will now explain my reasons. Others may judge the morality and honour of the late Rajbir Singh Sandhu. My task is quite different. Quite apart from his abandonment of his son and the mother of his child in 1967 must dispassionately consider the intervening 30 years and answer the question aptly posed by Mr. Matthews in argument: “What if anything is the moral obligation between two spouses given the fact that their marriage broke down 30 years ago and that they have been living apart and financially independent from one another ever since?” Inderjeet Sandhu was once the wife of Rajbir Sandhu. In her mind they were never divorced. She continues to think of herself as his wife. Yet they were estranged for 30 years prior to Rajbir’s death. He and Marcelle had lived happily together as husband and wife for almost 30 years. Beyond handful of people no one knew his secret or that Gurpreet and Inderjeet ever existed. It was not until Raj’s own funeral that his closest friends and executors learned the truth. In light of those extraordinary circumstances does Inderjeet qualify as “spouse” for the purpose of making claim against Rajbir’s estate under either the Matrimonial Property Act or the Pension Benefits Act? think not. There are important policy and substantive reasons which, in my judgment bar her claim for relief. Neither statute was designed nor intended to apply to circumstances such as these. To my mind, Inderjeet would not have claim under either legislative scheme, had Marcelle survived. How then can Inderjeet’s ability to sue arise or be enhanced by the death of Marcelle? Although the Matrimonial Property Act is retrospecitve in application, it must also be acknowledged that this statute and similar legislative schemes in other provinces had only come into effect years after Raj and Inderjeet’s marital relationship had collapsed. The preamble to this statute is also interesting. It emphasizes the values sought to be recognized and protected by the legislation. For example, the desirability to: .strengthen the role of the family .” or recognize: “. the contribution made to marriage” or provide: .for the settlement of the affairs of the spouses upon the termination of marriage relationship. .” (underlining mine) This and the substantive provisions of the Matrimonial Property Act make it clear that its purpose is to ensure the fair distribution of assets accumulated during marriage by taking into account the role and contribution made by each spouse. Rajbir and Inderjeet married in 1960. Three years later Rajbir was in the United States studying law at Yale University. Inderjeet reported for work as medical resident at hospital in Buffalo, New York on July 1, 1965. Not surprisingly cracks developed in their marriage when she first heard rumous about Rajbir carrying on an affair with “a French woman”. One might reasonably infer that this extra-marital relationship developed sometime between 1963 (his arrival in New Haven, Connecticut) and 1965 (Inderjeet’s arrival there). The stress of his suspected infidelity and the strain of pursuing career in medicine with new baby in foreign country proved too much. Inderjeet and Gurpreet returned to India. Subsequently discovering that Marcelle had followed Rajbir to New Delhi only added to the marital discord. Rajbir effectively abandoned his wife and child by banishing them from his parents’ home in 1967. They never again lived together as husband and wife. Thus “the termination of their marriage relationship” (to quote the language of the Matrimonnial Property Act) occurred in 1967 at the latest and, arguably, even sooner. Had Marcelle survived her husband or had either she or Raj ever sought distribution of matrimonial assets, there is no question but that she would have qualified as Rajbir’s “spouse” under the definitions of that word found in Section 2(g) of the Act. find it inconceivable that Marcelle’s claim to division of their matrimonial assets under the Act as Raj’s spouse of 30 years could be trumped by an action instituted on the part of Inderjeet, the wife Raj deserted in 1967. Quite apart from these policy reasons there are other impediments to her claim for relief. Section defines “matrimonial assets”. Specifically excluded among other things are: (a) gifts, inheritances received by one spouse from person other than the other spouse except to the extent to which they are used for the benefit of both spouses or their children; (b) real and personal property acquired after separation unless the spouses resume cohabitation.” Nothing in the inventory filed by the executors constitutes matrimonial assets since, in my opinion, none of it arose or existed before Rajbir and Inderjeet separated. That is complete answer to her demand. While it is true that many valuable gifts were given to Rajbir and Inderjeet at their wedding in 1960, what happened to those things afterwards is unknown. What is certain is that they are not in the hands of the executors. There is no conclusive evidence as to whether they exist and if so their whereabouts or their present value. The plaintiff has speculated that the $32,000.00 sum declared on Rajbir’s immigration documentation represents Rajbir’s “conversion” of her dowry. Another explanation is just as plausible. It could as easily have been Rajbir’s inheritance of some of the money left to him by his mother when she died in 1965. In 1999 these things are simply not identifiable. One cannot draw any conclusions as to the origins of this $32,000.00 sum, assuming it was truthful declaration at the time. substantial portion of Rajbir’s estate comes from his and Marcelle’s working history as professors at Dalhousie University, for example their salaries, insurance and pension benefits. It is impossible to conclude, to the required standard of proof, that anything in Rajbir’s estate can be linked to any gift or asset or sum of money to which Indeerjeet would be entitled. This inadequacy of proof is, of itself, reason to defeat her claim. So too her demand under the Pension Benefits Act.. Marcelle would, arguably, qualify under any of the four alternative definitions of “spouse” set out in Section 2(aj) of the Act. She and Rajbir identified each other as their “spouse” in their reciprocal wills. Exhibit describes their respective applications for pension benefits at Dalhousie University. Rajbir and Marcelle designated each other as their beneficiary. There can be no doubt that Rajbir intended that Marcelle would receive his pension and visa versa. They maintained that position throughout the 1970's, 1980's and 1990's. Inderjeet would never have claim to the pension benefits Marcelle earned during her lifetime. Neither does she have claim to the pension earned by Rajbir over the 30 years he was employed at the University. Inderjeet’s “marriage” to Rajbir (for the purposes of entitlement to his pension) had ended years before Rajbir’s benefits started to accrue. Section 61ff contain the provisions applicable to “pension entitlement on marriage breakdown”. The “spouse” may apply for division of the pension benefits “earned during the marriage”. Such language is found in, for example, Section 61(2) and (5). Subsection (6) speaks of “termination of the marriage relationship”. Even assuming Inderjeet qualified as Rajbir’s “spouse” which she clearly does not she would only be able to seek: “. such proportion, not exceeding one half of the pension benefit earned during the marriage.” (underlining mine) No part of Rajbir’s pension was earned during his marriage to Inderjeet. That is complete answer in rejecting the plaintiff’s claim. Had Marcelle survived she could have claimed 100 percent of her entitlement to Rajbir’s pension benefits. Inderjeet would not have had any claim at all. Inderjeet cannot be better off simply because Marcelle died first. agree with Mr. Matthews’ submission that the order of their death should be irrelevant; otherwise it becomes lottery of who dies first. The Dalhousie pension plan does not contemplate nor was intended to apply to competing “spouses” co-existing and entitled to advance distinct claims. To presume what would likely have happened is hardly speculation. Rather, failing to consider its likelihood would amount to ignoring facts which are pivotal to an accurate assessment of these extraordinary circumstances and their legal consequences. Further, as matter of common sense it seems untenable that Dalhousie University professor would have any legal or moral obligation to give his pension benefits to woman from whom he had been separated for 30 years, while denying those same benefits to the woman with whom he had lived happily for more than 30 years. Finally, it seems to me that in order to prove she qualifies as the “spouse” of Rajbir Sandhu it would in the unique circumstances of this case where Rajbir and Marcelle are both dead be incumbent upon Inderjeet to satisfy me that Rajbir lived the last 30 years of his life as bigamist. For how else can she deny the compelling evidence from witnesses in Canada and relatives in France who all described the loving, devoted and life-long relationship between Rajbir and Marcelle? Bigamy is most serious allegation. In Canadian culture it draws an odious social stigma. It invites criminal prosecution with severe penal consequences. For example, Section 290 of the Criminal Code provides: “290.(1) Bigamy Every one commits ‘bigamy’ who (a) in Canada, (i) being married, goes through form of marriage with another person, (ii) knowing that another person is married, goes through form of marriage with that person, or (iii) on the same day or simultaneously, goes through form of marriage with more than one person; or 291. (1) Punishment Every one who commits bigamy is guilty of an indictable offence and liable to imprisonment for term not exceeding five years.” Obviously in this, civil case, party does not have to satisfy the criminal burden of proof beyond reasonable doubt. Here, in order to succeed on this aspect, Inderjeet Sandhu must adduce strong and cogent evidence to civil standand but commensurate with such serious allegation. It is much the same as we find in civil cases of arson or fraud where the insurer’s defence attempts to show that the policyholder has, in the civil context, engaged in conduct approaching criminal behaviour. Some of the documentation and sworn answers to Interrogatories introduced at trial supports the assertion that on May 2, 1968 Rajbir Sandhu and Marcelle Cendres participated in civil form of “marriage ceremony” at the French Embassy in New Delhi, India.However, it is impossible to say on balance of probabilities that such an attendance constituted for the purposes of this case lawful marriage ceremony thereby legitimizing the resulting relationship between Rajbir and Marcelle as being one of “husband and wife” from that day forward. The evidence is inconclusive as to both such lawful, legitimate ceremony and the necessary ancilliary events or circumstances leading up to it. While the plaintiff has raised many suspicious circumstances surrounding Rajbir Sandhu, am unable to conclude, on balance of probabilities, that his marriage to Marcelle was fraud or that he ought be characterized as bigamist. Dying within days of the other, and before any litigation ensued, Rajbir and Marcelle never had the chance to “give their side” of the story. Their inability to defend themselves cannot be taken lightly. Their explanation of events may have been quite different than the interpretation urged upon me by Gurpreet and his mother. It would be unsafe and unfair to presume fraud on the evidence before me. I have reached a different conclusion in my analysis of Inderjeet’s claim under the Testators’ Family Maintenance Act. By contrast the focus of this statute is the adequacy of provisions made by the testator for: the proper maintenance and support of dependent .” The Act is concerned with the adequacy of maintenance due qualified dependents. It protects the family of the testator against manifestly wrong treatment by enforcing the testator’s moral obligation to make proper and adequate provision for the support of his wife and children. The question to be decided is not what the judge would do in the circumstances of the testator. Rather the issue is whether the testator has failed in his legal and moral duty to dependent as required by law. The claimant need not show actual or urgent need or true dependency in order to succeed. To justify interference with will court must find failure to provide proper maintenance and support and moral claim to entitlement. In deciding what is proper the Court looks beyond the bare necessities of existence. It should consider the magnitude of the estate, the circumstances of the claimant, the strength of his or her moral claim to share in the estate and the situation of others having claims upon the testator. It is not the Court’s role to rewrite the will of the testator; rather to intercede in those appropriate cases so as to correct moral wrong. The award the Court may make in substutition for such testamentary omission is that which wise and just testator would have considered himself morally bound to make had he been aware of all the relevant circumstances. (See generally Garrett v. Zwicker (1976), 15 N.S.R. (2d) 118 (N.S.S.C.A.D.)) The analysis involves the exercise of very broad judicial discretion. am entitled to consider “all relevant circumstances”. While some guides to my inquiry are found in Section this list is not an exhaustive one. Here my investigation is not so closely or technically restricted by the meaning or application of the definition of “spouse”. Phrases like: “married to each other” “form of marriage” “cohabitating” “after separation” “cohabitation” “a marriage” “living together as husband and wife” “marriage breakdown” “earned during the marriage” are absent from the provisions of the Testators’ Family Maintenance Act. As the name implies, the Act is concerned with the testator’s family. Inderjeet, once his wife and the mother of his child was, during the time they lived together, an integral part of Rajbir’s family. The word “dependent” is defined as: means the widow or widower of testator .” Arguably, and in the circumstances of this special case, am prepared to find that Inderjeet, once the wife of Rajbir, qualifies as his widow and fulfills the definition of “dependent” under the Testators’ Family Maintenance Act. She has established a strong moral claim and a failure to provide proper maintenance. She is not disqualified by any of the criteria described in Section 5. There was no delay amounting to laches in advancing her claim for relief. While the love and respect between Inderjeet and Gurpreet was obvious when they appeared before me at trial, the settlement reached by Gurpreet is immaterial to my consideration of his mother’s claim. In determining what is fair and appropriate award for Inderjeet give considerable weight to several factors. She sacrificed great deal both professionally and financially, in order for Gurpreet to achieve what he has in life. These deliberate choices on her part undoubtedly held her back from much more lucrative work as physician in India. The responsibility of rearing Gurpreet and providing for his superb education (apart from scholarships) fell to her alone. Rajbir was extremely proud of the job Inderjeet had done in rearing their son. Since none of that effort financial or otherwise ever became Raj’s responsibility, Inderjeet’s work, sacrifice and devotion all amount, in effect, to “services” rendered by Inderjeet towards Rajbir. One might also take into account the considerable nursing care and other support she provided Rajbir’s father before his death in 1992 at the age of 93. Rajbir and Inderjeet maintained cordial relationship up until the time of his death. He did take an interest in her well-being. have already found that he promised to help her if she ever asked for financial assistance. Her “failure” to ask is no bar to relief. Neither does it suggest luxurious comfort on her part. On the contrary find that Inderjeet never asked Rajbir for money for many reasons, among them: pride, honour and the reasonable expectation that both she and Rajbir would live long lives. No one had reason to expect that Rajbir would die so young. His father and other relatives had lived well into their 90's. She had good reason to think he would provide for her in his later years as he had promised. accept Inderjeet’s evidence as to her present circumstances and status in life. She was obliged to retire at age 58. Her only “savings” consist of couple of thousand rupees bearing interest at the rate of percent per annum. Dr. Sandhu’s pension is meager by North American standards. In argument counsel stipulated they had calculated her pension as having value of approximately $175.00 U.S. per month. find that Rajbir was ignorant of Inderjeet’s true financial situation. find that she is only able to survive with the financial assistance she receives from time to time from her brother. Such was never revealed to Rajbir Sandhu. Inderjeet broke down and wept when she disclosed such assistance to me during her testimony. find that had Rajbir been fully informed he would have made adequate and generous provision for her maintenance and support in his will. The fact that he neglected to make such provision in the 20 days between Marcelle’s death and executing his new will on August 22, 1997 is hardly significant because his thinking was preoccupied in coping with Marcelle’s death. Finally, place considerable weight on the guilt that burdened Rajbir throughout his life, perhaps most dramatically revealed when he confessed to his own cowardice and treachery at his son and daughter-in-law’s wedding in 1993. Here again Raj renewed his promise to provide for Inderjeet and their son. In light of these circumstances and an estate worth more than $3 Million it would offend all notions of decency, fairness and equity to deny significant award to Inderjeet Sandhu for her proper maintenance and support. CONCLUSION After considering all relevant factors and the weight I have assigned to them in the exercise of my discretion, I award Inderjeet Sandhu the sum of $285,000.00 Cdn. payable out of the estate of the late Rajbir Singh Sandhu such a sum exclusive of any tax liability which may arise. In other words should such an award attract tax consequences then the liability for such tax is payable out of the estate with the result that the sum of $285,000.00 is net in the hands of Inderjeet Sandhu. Among other things the award takes into account the magnitude of the estate, and the substantial legacies to be paid out to Gurpreet and the other residual legatees. award solicitor and client costs to Gurpreet, to Inderjeet, to the executors and to the residuary beneficiaries in one bill of costs with the proviso that as Mr. D. Michael Willcock did not participate at the trial, costs awarded to the Missionaries of Charity should reflect the limited involvement of their counsel in the litigation. Should be wrong in the approach have taken to the analysis and application of the provisions of the Testators’ Family Maintenance Act, then would have awarded the same sum, on the same basis, to Inderjeet Sandhu in equity founded upon the doctrine of unjust enrichment. In my view such an award could easily be supported on the basis of the years in which they cohabited, the professional and other sacrifices made by Dr. Inderjeet Sandhu both in India and in America, such things prompting the resulting “gains” achieved by Rajbir Sandhu, all at the expense of Inderjeet Sandhu. had the benefit of excellent work by counsel in this case. am most grateful for their courtesy, preparation and advocacy throughout. wish to save the last word for Inderjeet and Gurpreet Sandhu. understand how painful it was to have to speak of such private matters in the presence of strangers. It was privilege for me to hear of your exceptional lives and accomplishments, and be offered brief glimpse of your faith, ancestry and culture, about which you should be justly proud.
A wife claimed part of the estate of her estranged husband. The Court considered the applicability of the Testator's Family Maintenance Act, the Matrimonial Property Act, and the Pension Benefits Act. Awarding the plaintiff $285,000 out of the $3 million estate, that under the Testator's Family Maintenance Act the claimant need not show actual or urgent need or true dependency in order to succeed. To justify interference with a will a court must find a failure to provide proper maintenance and support and a moral claim to entitlement. The court must consider the magnitude of the estate, the circumstances of the claimant, the strength of his or her moral claim to a share in the estate, and the situation of others having claims upon the testator. This involves a very broad judicial discretion. Here, the plaintiff had established a strong moral claim and a failure to provide proper maintenance.