Barrett Estate, Re, (1996) 139 Nfld. & P.E.I.R. 202 (NFTD)

• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: February 19, 1996
• Jurisdiction: Newfoundland and Labrador
• Citations: (1996), 139 Nfld. & P.E.I.R. 202 (NFTD)

Barrett Estate, Re (1996), 139 Nfld. & P.E.I.R. 202 (NFTD);

    433 A.P.R. 202

MLB headnote and full text

In The Matter of the Last Will and Testament of the late Robert Moore Barrett, retired Funeral Home Operator of the City of St. John's, in the Province of Newfoundland;

And In The Matter of an application to the Newfoundland Supreme Court (Trial Division) pursuant to s. 25 of the Trustee Act, R.S.N. 1990, c. T-10.

David Barrett and Bruce Barrett, as Co-Executors and Co-Trustees of the Last Will and Testament of Robert Moore Barrett, late of the City of St. John's, Newfoundland, deceased (applicants)

(1996 St. J. No. 0076)

Indexed As: Barrett Estate, Re

Newfoundland Supreme Court

Trial Division

Hickman, C.J.T.D.

February 19, 1996.

Summary:

The executors and trustees of the estate of Robert Barrett applied for an inter­preta­tion and directions as to the manner by which the testator's debts were to be paid out of his estate. While the estate was solvent, there were insufficient assets to pay all of the testator's debts and all of the benefici­aries named in the will in full.

The Newfoundland Supreme Court, Trial Division, issued directions accordingly.

Executors and Administrators - Topic 2800

Duties and powers of executors and ad­ministrators - Payment of debts - General principles - The Newfoundland Supreme Court, Trial Division, stated that "[i]t is well established law that in cases where there are sufficient assets to pay the debts and liabilities of an estate, but insufficient to pay all benefici­aries in full, the estate is solvent and the creditors must be paid in full" - See para­graph 7.

Wills - Topic 3103

Gifts - General v. specific v. demonstra­tive - In clause 5 of his will, the testator directed that his house and lands be sold and the proceeds distributed to named beneficiaries in specified amounts - The Newfoundland Supreme Court, Trial Divi­sion, held that the bequests contained in clause 5 were general gifts - See para­graph 19.

Wills - Topic 3103

Gifts - General v. specific v. demonstra­tive - In his will, a testator directed that "my 28 shares in Barrett's Funeral Home Limited to be transferred, conveyed and assigned to: (1) 14 shares to my grandson, Robert R. Barrett; and (2) 14 shares to my grandson, Colin Barrett" - The Newfound­land Supreme Court, Trial Division, held that the bequest of shares were specific legacies - See paragraph 24.

Wills - Topic 3111

Gifts - Forgiveness of debts owed to testator - An estate had insufficient assets to pay all of the testator's debts and all of the beneficiaries named in the will in full - The executors applied for directions regarding, inter alia, whether the forgive­ness of certain debts owed to the testator in clause 7 of the will ought to be given effect - The Newfoundland Supreme Court, Trial Division, held that debts that are forgiven by a testator are not assets of the estate and therefore no issue of abate­ment arose in respect of the same - See paragraphs 30 to 32.

Wills - Topic 3246

Gifts - Abatement of gifts - Priorities - An estate had insufficient assets to pay all of the testator's debts and all of the bene­ficiaries named in the will in full - The Newfoundland Supreme Court, Trial Divi­sion, stated that the order of abatement would depend on the determination of the nature of the bequests under the will - All assets bequeathed under the residuary clause were the first to abate and had to be used in their entirety toward the payment of the estate debts - Following the ex­haustion of the residue, certain general gifts were next in line to satisfy the estate debts - The residue and the general gifts were sufficient to satisfy the estate debts and therefore certain specific legacies were not subject to abatement in this case.

Wills - Topic 3246

Gifts - Abatement of gifts - Priorities - The Newfoundland Supreme Court, Trial Division, stated that in cases where the assets are insufficient to pay all of the debts of an estate, the residue must be the first to abate - See paragraph 11.

Cases Noticed:

Anderson, Re (1902), 1 O.W.R. 217 (S.C.), refd to. [para. 11].

Harland-Peck, Re, [1941] Ch. 182 (C.A.), refd to. [para. 12].

Diocesan Synod of Fredericton v. Perrett, [1955] S.C.R. 498, consd. [para. 17].

Church, Re (1906), 8 O.W.R. 228 (H.C.), consd. [para. 18].

Paget v. Huish (1863), 71 E.R. 291 (Ch.), refd to. [para. 22].

Webster, Re; Goss v. Webster, [1937] 1 All E.R. 602 (C.A.), refd to. [para. 22].

Tomlin, Re, [1945] O.W.N. 589 (H.C.), refd to. [para. 22].

Millar, Re, [1927] 3 D.L.R. 270 (Ont. H.C.), consd. [para. 25].

Hawkins, Re; Public Trustee v. Shaw (1922), 91 L.J. Ch. 486, refd to. [para. 25].

McLean (A. Neil) Estate of, Re (1969), 1 N.B.R.(2d) 500 (C.A.), refd to. [para. 26].

Watt, Re, [1958] O.W.N. 418 (H.C.), refd to. [para. 31].

Authors and Works Noticed:

Feeney, Thomas G., The Canadian Law of Wills (3rd Ed. 1987), vol. 1, pp. 251 [para. 8]; 252 [para. 12];

Counsel:

Thomas J. Johnson, for the applicants.

This application was heard before Hick­man, C.J.T.D., of the Newfoundland Supreme Court, Trial Division, who filed the follow­ing decision on February 19, 1996.