Casavechia Estate, Re, 2015 NSSC 119

• Judge: Legere Sers, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: March 02, 2015
• Jurisdiction: Nova Scotia
• Citations: 2015 NSSC 119;(2015), 358 N.S.R.(2d) 138 (SC)

Casavechia Estate, Re (2015), 358 N.S.R.(2d) 138 (SC);

    1131 A.P.R. 138

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. AP.052

Glenna Casavechia (applicant) v. The Bank of Nova Scotia as Executor and Trustee of the Estate of Louis William Casavechia (respondent)

(Hfx. No. SFHMPAY-085963; 2015 NSSC 119)

Indexed As: Casavechia Estate, Re

Nova Scotia Supreme Court

Family Division

Legere Sers, J.

April 15, 2015.

Summary:

The testator's daughter applied for proof in solemn form of a handwritten letter prepared by her father two years before his death. The letter purported to give her a lakefront building lot to be carved out of his property at 379 Caldwell Road when it was sold.

The Nova Scotia Probate Court, in a decision reported at 342 N.S.R.(2d) 41; 1083 A.P.R. 41, allowed the application, holding that the letter was a valid holograph codicil. The trustee was granted the right to make the final determination as to the location and dimensions of the lot devised by the codicil or to seek the court's assistance regarding the codicil if necessary. The daughter sought solicitor/client costs.

The Nova Scotia Probate Court refused to award solicitor-client costs. However, the court held that in order to "... do justice between the parties" (Civil Procedure Rule 77.02(1)), the Tariff C range of $750 to $1,000 did not adequately help to compensate the successful party. The guidelines under Tariff C allowed a judge to "... award costs that were just and appropriate in the circumstances of the application." The court awarded $2,000 costs payable out of estate assets at closing and reimbursement of any reasonable disbursements incurred in advancing the application. The testator's widow/daughter's stepmother (applicant) appealed the decision that the letter was a valid codicil. She had also applied under the Matrimonial Property Act seeking: (1) an equal division of their matrimonial property inclusive of debts; she wanted to retain her half of the land; (2) she proposed that she retain the residential property located at 379 Caldwell Road inclusive of the house, outbuildings and three acres of land (the House Property) as described in paragraph 3(c) of the will; she wished the court to define her half as the "upper portion", being the road frontage portion; she suggested that her expert's report supported a conclusion that the acreage was equal in value; she sought to have 12.16 acres deeded to her with the remaining 14.84 acres "lower portion" to the estate; (3) for consideration, she would grant a right of way to the lower portion; (4) a deed indicating she was tenant in common with the estate; and (5) an order directing the trustee to commission a survey at the expense of the estate to determine whether her proposed division could be accomplished. The testator's biological children were granted intervener status. They requested, inter alia, relief by way of an unequal division of property. Both also filed Testator Family Maintenance applications regarding the estate.

The Nova Scotia Supreme Court, Family Division, held that the Matrimonial Property Act application took precedence. The interveners' request for relief by way of an unequal property division was denied at this stage, subject to the parties' right to argue it at a later hearing. The court held that there was insufficient evidence to permit the court to effect an equal division of the subject property or to determine that all acreage was equal or that the property could be subdivided in a fashion to effect the applicant's wish or the estate's entitlement. The court refused to grant a deed conveying a one-half interest in the land to the applicant as a tenant in common. At this stage it would complicate the matter, add another layer and route of possible recovery through a different statute and likely result in further litigation. Absent a final decision from the Court of Appeal on the codicil, conveying legal title of half the property might give the applicant an interest in land that might otherwise be excluded from the division. The costs to effect the transfer of title of the residence property (matrimonial home and two outbuildings with three acres) was a cost the testator had allowed for his estate to absorb. Should the applicant elect to effect this subdivision due to need or other reason it was reasonable to conclude that these costs should come from the estate. The cost of a larger survey, as requested by the applicant, could result in a significant expense beyond that authorized by the estate. The larger survey was an expense that, in ordinary circumstances, the estate would not necessarily need to bear. The court declined without further evidence to rule on what would constitute an equal division. The court adjourned the application to allow the parties to collect more reliable information.

Executors and Administrators - Topic 3714

Duties and powers of executors and administrators - Distribution - General - Marital property legislation - Effect of - Applications were brought regarding an estate under both the Matrimonial Property Act and the Testator's Family Maintenance Act - The Nova Scotia Supreme Court, Family Division, stated that "[w]here there are twin applications regarding an estate, the application under the Matrimonial Property Act proceeds first." - See paragraph 11.

Executors and Administrators - Topic 6210

Accounts and passing of accounts - General principles - Estate expenses - What constitute - A widow (the applicant) applied for an equal division of property under the Matrimonial Property Act - Her wish to stay on her portion of the real property might affect the feasibility of subdivision or partition as an alternative to an order for the entire property's sale - At issue was the value of the land in total and per acre; how the trustee could achieve an equal division of the real property; and how this value was to be discovered - Both qualified experts suggested that a survey be completed to confirm if subdivision was possible, as this was beyond their expertise - The parameters of this survey and who bore the completion cost was a principal issue - The applicant sought an order directing the trustee to commission a survey at the estate's expense to determine whether her proposed division could be accomplished - The Nova Scotia Supreme Court, Family Division, denied the applicant's request - The larger survey might not be the most efficient use of estate funds and might not produce a viable option for subdivision that was fair and equitable - The costs to effect the transfer of title of the residence property gifted to the applicant under the will (matrimonial home, two outbuildings and three acres) was a cost that the testator had allowed for his estate to absorb - If the applicant elected to effect this subdivision, it was reasonable to conclude that these costs should come from the estate - The cost of the larger survey the applicant requested could result in a significant expense beyond that authorized by the estate, and produce a result that caused the trustee to reject the proposed subdivision or that was an unequal dollar value of the property - Were he alive today, it would be fair to conclude that the testator would have insisted that the buyers absorb the cost of the larger survey required for development purposes - It was an expense that, in ordinary circumstances, the estate would not necessarily need to bear - The court also rejected the interveners' request that the applicant absorb the costs of a survey to effect an equal property division - See paragraphs 149 to 160.

Family Law - Topic 866

Husband and wife - Marital property - Distribution orders - Jurisdiction or application of statutes - [See Executors and Administrators - Topic 3714 ].

Family Law - Topic 875

Husband and wife - Marital property - Distribution orders - Statutes requiring equal division - Exceptions (incl. judicial reapportionment) - A widow (the applicant) applied for an equal division of property under the Matrimonial Property Act - She was also a beneficiary under her late husband's will which had gifted her, inter alia, "... the right to hold the 'residence property' in her husband's name at 379 Caldwell Road [the matrimonial home, two outbuildings and three acres] as a home during her lifetime or for such shorter time as she desires or the trustee in his absolute discretion considers appropriate"- The applicant wished to stay on her portion of the real property and this might effect the feasibility of subdivision or partition as an alternative to an order for the entire property's sale - The testator's biological children were granted intervener status - They sought an unequal division of the property to, inter alia, account for the unequal tax treatment as between the two shares - The Nova Scotia Supreme Court, Family Division, declined to rule on what would constitute an equal division without further evidence, adjourning the application to allow the parties to collect more reliable information - If the interveners wished to advance their argument for an unequal division they might consider providing factual support and authority to justify an unequal division that flowed from the spirit and intention of the Act before the court would consider ordering a spouse to share with a family member, or other beneficiary, a tax benefit indirectly by way of an unequal division under the Act - See paragraphs 201 to 247.

Family Law - Topic 880.10

Husband and wife - Marital property - Distribution orders - Enforcement - Conveyancing - A widow (the applicant) applied for an equal division of property under the Matrimonial Property Act - Her wish to stay on her portion of the real property might affect the feasibility of subdivision or partition as an alternative to an order for the entire property's sale - At issue was the value of the land in total and per acre; how the trustee could achieve an equal division of the real property; and how this value was to be discovered - The Nova Scotia Supreme Court, Family Division, held that there was insufficient evidence to permit the court to effect an equal division of the subject property or to determine that all acreage was equal or that the property could be subdivided in a fashion to effect the applicant's wish or the estate's entitlement - The court refused the applicant's request to grant a deed conveying a one-half interest in the land to her as a tenant in common - At this stage it would complicate the matter, add another layer and route of possible recovery through a different statute and likely result in further litigation - See paragraphs 184 to 195.

Family Law - Topic 882

Husband and wife - Marital property - Distribution orders - Relevant considerations (incl. income tax) - [See Family Law - Topic 875 ].

Family Law - Topic 888

Husband and wife - Marital property - Considerations in making distribution orders - Valuation - [See Executors and Administrators - Topic 6210 ].

Cases Noticed:

Driscoll v. Driscoll's Estate (1989), 88 N.S.R.(2d) 1; 225 A.P.R. 1; 12 A.C.W.S.(3d) 397; 1988 Carswell NS 349, refd to. [para. 12].

Fraser v. Fraser Estate (1983), 50 N.S.R.(2d) 55; 98 A.P.R. 55; 145 D.L.R.(3d) 554 (T.D.), refd to. [para. 13].

Levy, Re (1981), 50 N.S.R.(2d) 14; 98 A.P.R. 14; 25 R.F.L.(2d) 149, refd to. [para. 36].

Counsel:

Lisanne Jacklin, for the applicant;

Wayne Francis, for the respondent;

Tanya Butler, for Gary Casavechia and Shannon Noseworthy.

This case was heard on March 2, 2015, at Halifax, N.S., by Legere Sers, J., of the Nova Scotia Supreme Court, Family Division, who delivered the following decision on April 15, 2015.