Beck Estate, Re, (2015) 365 N.S.R.(2d) 83 (ProbCt)

• Judge: Moir, J.
• Court: Probate Court of Nova Scotia (Canada)
• Case Date: May 14, 2015
• Jurisdiction: Nova Scotia
• Citations: (2015), 365 N.S.R.(2d) 83 (ProbCt);2015 NSSC 239

Beck Estate, Re (2015), 365 N.S.R.(2d) 83 (ProbCt);

    1151 A.P.R. 83

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. AU.024

In the Estate of Vera May Beck

(Bwt. No. 431260; 2015 NSSC 239)

Indexed As: Beck Estate, Re

Nova Scotia Probate Court

Moir, J.

August 18, 2015.

Summary:

The court was asked to interpret a will under which named beneficiaries died before the testator. Also, the personal representative was not confident about the correct interpretation of subclause 5(d)(10) that referred to brothers and sisters when some of the testator's brothers and sisters died before she made the will.

The Nova Scotia Probate Court granted a declaration that subclause 5(d)(10) referred to the brothers and sisters of the testator alive when she made her will, as individuals and not a class. The court also declared that the gift to the brother in subclause 5(d)(10) lapsed and the subject of the gift went as on an intestacy. The expenses of obtaining the declaration were to be paid by the estate in the ordinary course.

Executors and Administrators - Topic 5548

Actions by and against representatives - Costs - Where payable out of estate - [See Wills - Topic 4070 ].

Practice - Topic 7455

Costs - Solicitor and client costs - Entitlement to - Estates and estate matters - [See Wills - Topic 4070 ].

Wills - Topic 4046

Failure of gifts - Lapse - Devolution of lapsed gift - [See Wills - Topic 4070 ].

Wills - Topic 4061

Failure of gifts - Lapse - Death of legatee - General - [See Wills - Topic 4070 ].

Wills - Topic 4070

Failure of gifts - Lapse - Death of legatee - Specific bequests - The court was asked to interpret a will under which named beneficiaries died before the testator, particularly subclause 5(d)(10) that referred to brothers and sisters - Some of the testator's brothers and sisters had died before she made the will - The Nova Scotia Probate Court declared that subclause 5(d)(10) referred to the brothers and sisters of the testator alive when she made her will, as individuals and not a class - The testator was individual, not group, minded - She named the individuals in the group and mentioned their number - The court also declared that the gift to the brother in subclause 5(d)(10) lapsed and the subject of the gift went as on an intestacy - The significant gifts of parts of the residue to the testator's niece and her children without any provision about predeceasing the testator, context supplied by the absence of any reference to other members of the next generations, the partial nature of the anti-lapsing provisions in clause 5(c), and the testator's circumstances when she made her will, convinced the court that she made deliberate choices to limit her anti-lapsing provisions - Further, the dead end of the gift to her brother likely was deliberate - Therefore, the will did not show an intention contrary to lapsing when both he and his wife died before the testator - The expenses of obtaining the declaration were to be paid by the estate in the ordinary course.

Wills - Topic 5183

Construction - Evidence and proof - Intention of testator - [See Wills - Topic 4070 ].

Wills - Topic 8544

Evidence and proof - Extrinsic evidence - Of surrounding circumstances to resolve ambiguity in will - [See Wills - Topic 4070 ].

Cases Noticed:

Mitchell Estate v. Mitchell Estate (2004), 228 N.S.R.(2d) 295; 723 A.P.R. 295; 2004 NSCA 149, refd to. [para. 18].

Saunders Estate, Re (2005), 236 N.S.R.(2d) 16; 749 A.P.R. 16; 2005 NSSC 216, refd to. [para. 19].

O'Brien, Re (1978), 25 N.S.R.(2d) 262; 36 A.P.R. 262 (C.A.), refd to. [para. 20].

Carter Estate, Re (1991), 109 N.S.R.(2d) 384; 297 A.P.R. 384 (T.D.), affd. (1993), 120 N.S.R.(2d) 259; 332 A.P.R. 259 (C.A.), refd to. [para. 21].

Mitchell Estate v. Mitchell Estate (2003), 219 N.S.R.(2d) 118; 692 A.P.R. 118; 2003 NSSC 223, affd. (2004), 228 N.S.R.(2d) 295; 723 A.P.R. 295; 2004 NSCA 149, refd to. [para. 21].

Authors and Works Noticed:

Feeney, Thomas G., The Canadian Law of Wills (3rd Ed. 1987), vol. 2, pp. 154 [para. 12]; 351 [para. 19].

Counsel:

David C. Melnick, for the proctor;

Rosalie Beck Osmond, on her own.

This application was heard in Bridgewater, N.S., on May 14, 2015, by Moir, J., of the Nova Scotia Probate Court, who delivered the following decision on August 18, 2015.