Baird Estate, Re, (2014) 353 N.S.R.(2d) 226 (SC)

• Judge: Scaravelli, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: December 16, 2014
• Jurisdiction: Nova Scotia
• Citations: (2014), 353 N.S.R.(2d) 226 (SC);2014 NSSC 444

Baird Estate, Re (2014), 353 N.S.R.(2d) 226 (SC);

    1115 A.P.R. 226

MLB headnote and full text

Temp. Cite: [2014] N.S.R.(2d) TBEd. DE.047

In The Estate of Helen Baird, Deceased

(Pictou Probate No. P-20947; 2014 NSSC 444)

Indexed As: Baird Estate, Re

Nova Scotia Supreme Court

Scaravelli, J.

December 16, 2014.

Summary:

The 91 year old testatrix died in 2013. One of her daughters applied under s. 31(1) of the Probate Act to have the will proved in solemn form, alleging "suspicious circumstances" respecting the testatrix's testamentary capacity (allegedly suffered from dementia when the will was executed).

The Nova Scotia Supreme Court, in a judgment reported (2014), 348 N.S.R.(2d) 108; 1100 A.P.R. 108, admitted the will to probate. The proponents of the will proved that the testatrix had testamentary capacity. She was fully aware of and approved the contents of her will. The court ordered written submissions on costs if the parties failed to reach an agreement.

The Nova Scotia Supreme Court awarded the estate solicitor-client costs payable out of the estate and ordered that the daughter bear her own costs.

Practice - Topic 7243

Costs - Party and party costs - Offers to settle - Effect of failure to accept - [See Practice - Topic 7326 ].

Practice - Topic 7326

Costs - Costs in probate proceedings - Unsuccessful opposition to proof of will - The 91 year old testatrix died in 2013 - One of her daughters applied under s. 31(1) of the Probate Act to have the will proved in solemn form, alleging "suspicious circumstances" respecting the testatrix's testamentary capacity (allegedly suffered from dementia when the will was executed) - The court admitted the will to probate - The daughter established suspicious circumstances, but the estate established testamentary capacity - The estate sought solicitor-client costs or a lump sum payable by the daughter personally, rather than payable out of the estate - The estate also submitted that the daughter bear her own costs - The daughter argued that both parties should receive solicitor-client costs paid out of the estate - The Nova Scotia Supreme Court held that the daughter's application was not frivolous, as she established suspicious circumstances that required the estate to establish testamentary capacity - A prior will and the challenged will were similar and the daughter refused to accept a settlement offer that would have satisfied her concerns as to changes in the original will - In those circumstances, it would be unfair for the estate to absorb the daughter's costs - The daughter's conduct fell short of that required to order her to pay costs - Accordingly, the estate was awarded solicitor-costs payable out of the estate and the daughter was ordered to bear her own costs.

Practice - Topic 7328

Costs - Costs in probate proceedings - Solicitor and client costs - [See Practice - Topic 7326 ].

Cases Noticed:

Morash Estate v. Morash, [1997] N.S.R.(2d) Uned. 107; 1997 NSCA 124, refd to. [para. 7].

Van Kippersluis v. Van Kippersluis, [2011] N.S.R.(2d) Uned. 234 (S.C.), refd to. [para. 9].

MacKay v. Bucher (2001), 199 N.S.R.(2d) 248; 623 A.P.R. 248; 2001 NSCA 171, refd to. [para. 13].

British Columbia (Minister of Forests) v. Okanagan Indian Band et al., [2003] 3 S.C.R. 371; 313 N.R. 84; 189 B.C.A.C. 161; 309 W.A.C. 161, refd to. [para. 17].

Harnum v. Moser et al. (2007), 260 N.S.R.(2d) 99; 831 A.P.R. 99 (S.C.), refd to. [para. 18].

Barrieau Estate, Re, [2008] N.S.R.(2d) Uned. 213; 2008 NSSC 162 (Prob. Ct.), refd to. [para. 19].

Counsel:

Keith MacKay, for Grace Whitford;

Jill Graham-Scanlan, for Edward Baird and Barbara D'Eon.

This application was heard by way of written submissions at Pictou, N.S., before Scaravelli, J., of the Nova Scotia Supreme Court, who delivered the following judgment on December 16, 2014.