New Brunswick Court of Appeal Rejects Loss of Inheritance Claim Under Fatal Accidents Act in Absence of Proof of Reasonable Expectation of Inheriting
The recent decision of the New Brunswick Court of Appeal in Higgins v. Arseneau, 2019 NBCA 21, will be of interest for anyone involved with fatality claims in New Brunswick. The Court upheld the trial decision dismissing a claim brought on behalf of siblings for loss of inheritance arising out of the accidental death of their sister, Caroline Higgins. The Court held that the correct legal test for a loss of inheritance claim in a fatal accident case is whether the claimants had a reasonable expectation of pecuniary benefit which was frustrated by the premature death. The evidence at trial had not established the existence of such a reasonable expectation of pecuniary benefit. It was therefore appropriate that the action be dismissed.
Ms. Higgins was a pedestrian who died after being struck by the defendant’s motorcycle. She was a lawyer who had no spouse or other dependants. The deceased’s Will placed the entire residue of her estate, including both income and capital, in trust for her disabled niece. The siblings would only stand to inherit if the niece predeceased them and the trust had not been exhausted.
Ms. Higgins’s estate had previously claimed under the Survival of Actions Act (NB) to recover the post-death “loss of income” to the estate as a result of her premature death (a “lost years claim”). The Court of Appeal ruled on a pre-trial motion brought by the defence in this same proceeding that such claims are not recoverable under New Brunswick’s survival of actions legislation, as post-death loss of income is not an “actual pecuniary loss”: Higgins Estate v. Arseneau, 2014 NBCA 65.
The issue remaining for trial following the Court of Appeal’s earlier ruling was the loss of inheritance claim under the Fatal Accidents Act. Ms. Higgins’s executor brought a claim under the Fatal Accidents Act (NB) seeking to recover the loss of inheritance allegedly suffered by Ms. Higgins’s siblings as a result of her premature death. Nieces and nephews are not within the categories of persons entitled to recover their pecuniary losses resulting from death under the Fatal Accidents Act. The Act limits recovery to the spouse, parent, child, and siblings of the deceased.
The uncontested evidence at trial was that the niece had a normal life expectancy and was expected to outlive the youngest of Ms. Higgins’s siblings by more than 30 years. The trial judge concluded that, as the siblings would only inherit in the unlikely event that the niece predeceased them without having exhausted the trust established for her benefit in the Will, and as other contingencies further reduced the chance they would ever have inherited, the siblings had no reasonable expectation of pecuniary benefit from the estate. The Court of Appeal upheld the trial judge’s findings of fact regarding the contingencies that made the chance of inheriting vanishingly remote, and agreed that in those circumstances there was no reasonable expectation of pecuniary benefit entitling the siblings to compensation.
The Court of Appeal’s decision affirms that, while loss of inheritance is a recoverable head of damages in fatal accidents claims, there must be cogent evidence that establishes a reasonable expectation on the part of the permitted claimants under the legislation (spouse, parent, child, siblings) that they would, during their lifetimes, have inherited from the deceased person and that the inheritance they would otherwise have expected has been diminished due to the premature death. Previous cases in which loss of inheritance claims have been allowed have involved spouses and children of deceased persons. On the facts of this case, the unsuccessful claim by the estate for post-death loss of income could not succeed when essentially the same damages were re-branded as lost inheritance by claimants who had no reasonable expectation of inheriting in any event.
David G. O’Brien, QC and Patrick Dunn of Cox & Palmer’s Saint John, New Brunswick office defended the case.