Baird Estate, Re,

• Jurisdiction: Nova Scotia
• Judge: Scaravelli, J.
• Neutral Citation: 2014 NSSC 427
• Subject Matter: COURTS
• Citation: (2014), 353 N.S.R.(2d) 223 (SC),2014 NSSC 427,353 NSR(2d) 223,(2014), 353 NSR(2d) 223 (SC),353 N.S.R.(2d) 223
• Date: 28 November 2014
• Court: Supreme Court of Nova Scotia (Canada)

Baird Estate, Re (2014), 353 N.S.R.(2d) 223 (SC);

    1115 A.P.R. 223

MLB headnote and full text

Temp. Cite: [2014] N.S.R.(2d) TBEd. DE.043

In The Estate of Helen Baird, Deceased

(Pictou Probate No. 20947; 2014 NSSC 427)

Indexed As: Baird Estate, Re

Nova Scotia Supreme Court

Scaravelli, J.

November 28, 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 (Bourgeois, J.), 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. Prior to an order being entered after issuance of judgment, Bourgeois, J., was appointed to the Court of Appeal. Scaravelli, J., was appointed under rule 82.19 to complete the work on the file. One of the daughters, who appealed Bourgeois, J.'s decision, requested that Scaravelli, J., reconsider Bourgeois, J.'s decision.

The Nova Scotia Supreme Court declined to reconsider the decision.

Courts - Topic 2123

Jurisdiction - Trial jurisdiction - Rehearing and reconsideration of decisions - Bourgeois, J., admitted a will to probate, finding that the proponents of the will established testamentary capacity - Prior to an order being entered after issuance of judgment, Bourgeois, J., was appointed to the Court of Appeal - Scaravelli, J., was appointed under rule 82.19 to complete the work on the file (costs issue) - One of the testatrix's daughters who had challenged the will appealed the decision and requested that Scaravelli, J., reconsider Bourgeois, J.'s decision under rule 82.19 - The Nova Scotia Supreme Court declined to reconsider the decision - Rule 82.19 did not specifically authorize to reconsider a decision by another judge - A judge had a discretion to withdraw, modify or even reverse a decision that had not been formalized by an order - However, reconsideration of a judgment was an extraordinary remedy used to prevent an injustice to one or both parties - No authority was provided where a court exercised a discretion to reconsider a decision on the merits by another judge - The decision was appealed and the grounds for reconsideration were identical to the grounds of appeal - Bourgeois, J.'s decision on appeal was subject to deference - Reconsideration was akin to a de novo hearing where no deference would be given - The court stated that "a rehearing would not be an appropriate exercise of judicial discretion under these circumstances".

Cases Noticed:

MacDonald v. MacDonald - see MacLellan v. MacDonald.

MacLellan v. MacDonald (2010), 290 N.S.R.(2d) 317; 920 A.P.R. 317; 2010 NSCA 34, refd to. [para. 7].

Griffin v. Corcoran (2001), 193 N.S.R.(2d) 279; 602 A.P.R. 279; 2001 NSCA 73, refd to. [para. 7].

Counsel:

Keith MacKay, for the applicant;

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

This application was heard on November 28, 2014, at Pictou, N.S., before Scaravelli, J., of the Nova Scotia Supreme Court, who delivered the following judgment orally on November 28, 2014.