Arron Estate, Re, 2012 NSSC 292

• Judge: Rosinski, J.
• Court: Probate Court of Nova Scotia (Canada)
• Case Date: July 18, 2012
• Jurisdiction: Nova Scotia
• Citations: 2012 NSSC 292;(2012), 319 N.S.R.(2d) 274 (ProbCt)

Arron Estate, Re (2012), 319 N.S.R.(2d) 274 (ProbCt);

    1010 A.P.R. 274

MLB headnote and full text

Temp. Cite: [2012] N.S.R.(2d) TBEd. AU.015

Franklyn D. Medjuck, Q.C. (applicant) v. Louise Wolfson and Malerie Arron Shusterman, as Executrixes and Beneficiaries of the Estate of Donald Arron, Louis Wolfson, Pamela Covens, and Elissa Arron Purl (respondents)

(Hfx. No. 393634; 59089; 2012 NSSC 292)

Indexed As: Arron Estate, Re

Nova Scotia Probate Court

Rosinski, J.

August 1, 2012.

Summary:

The testator died on May 8, 2011. His will provided that his grandson Louis Wolfson was to have an exclusive first opportunity to buy any of the real property of his estate. Louis Wolfson gave notice of his intention to exercise that right on December 8, 2011, but no sale had yet taken place. Although the will clearly specified how the price would be set, disagreements arose among the beneficiaries and co-executrixes, such that the Proctor for the estate brought an application requesting that the court clarify who had the right to choose the closing date for the sales.

The Nova Scotia Probate Court held that Arron intended that the closing take place within a reasonable period of time after the notice of intent to purchase. The court ordered that the closing date for the sale transaction would be on or before September 14, 2012.

Executors and Administrators - Topic 3776

Duties and powers - Distribution - Time for - Conveyances of real property - [See Wills - Topic 5000 ].

Wills - Topic 5000

Construction - General - General principles - Ascertainment of intention of testator - The testator died on May 8, 2011 - His will provided that his grandson Louis Wolfson was to have an exclusive first opportunity to buy any of the real property of his estate - Louis Wolfson gave notice of his intention to exercise that right on December 8, 2011, but no sale had yet taken place - Although the will clearly specified how the price would be set (the average of two independent appraisals by AAIC qualified persons, less 10%), disagreements arose among the beneficiaries and co-executrixes, such that the Proctor for the estate brought an application requesting that the court clarify who had the right to choose the closing date for the sales - The Nova Scotia Probate Court held that there was no material ambiguity and a proper interpretation of the will did not necessitate a consideration of surrounding circumstances or extrinsic evidence of the testator's intentions - The testator intended that the closing take place within a reasonable period of time after the notice of intent to purchase - The co-executrixes had a legal obligation, with due dispatch and diligence, to do all things necessary to ensure that the testator's intention, that the properties in question be sold to Louis Wolfson, was effected as soon as possible - The court ordered that the closing date for the sale transaction would be on or before September 14, 2012 - See paragraphs 52 to 62.

Wills - Topic 5001

Construction - General - General principles - The testator passed away on May 8, 2011 - His will provided that his grandson Louis Wolfson was to have an exclusive first opportunity to buy any of the real property of his estate - Louis Wolfson gave notice of his intention to exercise that right on December 8, 2011, but no sale had yet taken place - Disagreements arose among the beneficiaries and co-executrixes, such that the Proctor for the estate brought an application requesting that the court clarify who had the right to choose the closing date for the sales - The Nova Scotia Probate Court commented that "any agreement between the (co-executrixes on behalf of the) Estate and Louis Wolfson regarding the actual closing date is not binding on this court. ... If the parties among themselves have a private agreement about how to proceed, that does not bind or concern the court in this application, as I must follow the law regardless of the wishes of private parties" - See paragraphs 48 to 51.

Cases Noticed:

Smithers v. Mitchell Estate - see Mitchell Estate v. Mitchell Estate.

Mitchell Estate v. Mitchell Estate (2004), 228 N.S.R.(2d) 295; 723 A.P.R. 295; 2004 NSCA 149, refd to. [para. 27].

Peach Estate, Re (2011), 301 N.S.R.(2d) 226; 953 A.P.R. 226; 2011 NSSC 74, refd to. [para. 28].

Murray Estate, Re (2001), 191 N.S.R.(2d) 63; 596 A.P.R. 63; 2001 NSCA 25, refd to. [para. 30].

Skerrett v. Bigelow Estate (2001), 195 N.S.R.(2d) 386; 609 A.P.R. 386; 2001 NSSC 116, refd to. [para. 31].

Mitchell Estate v. Mitchell Estate (2003), 219 N.S.R.(2d) 118; 692 A.P.R. 118; 2003 NSSC 223, refd to. [para. 57].

Counsel:

Ann Levangie and Sandra McCulloch, for the applicant;

Timothy C. Matthews, Q.C., for the respondent, Louise Wolfson;

Dale Dunlop and Ian Gray, for the respondents, Malerie Arron Shusterman, Pamela Covens and Elissa Purl;

Craig Garson, Q.C., for the respondent, Louis Wolfson.

This application was heard on July 18, 2012, at Halifax, N.S., before Rosinski, J., of the Nova Scotia Probate Court, who delivered the following decision on August 1, 2012.