Casavechia v. Noseworthy et al., (2015) 362 N.S.R.(2d) 64 (CA)

• Judge: Saunders, Oland and Scanlan, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: February 09, 2015
• Jurisdiction: Nova Scotia
• Citations: (2015), 362 N.S.R.(2d) 64 (CA);2015 NSCA 56

Casavechia v. Noseworthy (2015), 362 N.S.R.(2d) 64 (CA);

    1142 A.P.R. 64

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. JN.015

Glenna Casavechia (appellant/respondent by cross-appeal) v. Shannon Noseworthy and The Bank of Nova Scotia Trust Company, as personal representative of the Estate of Louis Joseph William Casavechia, Sheldon Casavechia, Nicole Casavechia, Josh Downey and Jace Downey (respondents/appellant by cross-appeal Shannon Noseworthy)

(CA 426686; 2015 NSCA 56)

Indexed As: Casavechia v. Noseworthy et al.

Nova Scotia Court of Appeal

Saunders, Oland and Scanlan, JJ.A.

June 11, 2015.

Summary:

The deceased's daughter filed an application for proof in solemn form of a handwritten letter prepared by her father two years before his death. The letter purported to give the applicant a lakefront building lot to be carved out of the deceased's property when it was sold.

The Nova Scotia Probate Court, in a decision reported at (2014), 342 N.S.R.(2d) 41; 1083 A.P.R. 41, allowed the application. The daughter sought solicitor/client costs.

The Nova Scotia Probate Court, in a decision reported at (2014), 345 N.S.R.(2d) 73; 1092 A.P.R. 73, 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 deceased's widow appealed the decision on the merits. The deceased's daughter appealed the failure to award solicitor-client costs.

The Nova Scotia Court of Appeal dismissed the appeal and allowed the cross-appeal.

Executors and Administrators - Topic 5548

Actions by and against representatives - Costs - Where payable out of estate - The Nova Scotia Court of Appeal stated that "there is a long line of jurisprudence in this Province that has held that the costs of the executor or personal representative of an estate involved in litigation pertaining to the estate is entitled to costs from the estate on a solicitor and client basis if it has acted reasonably." - See paragraph 70.

Executors and Administrators - Topic 5548

Actions by and against representatives - Costs - Where payable out of estate - The deceased's daughter filed an application for proof in solemn form of a handwritten letter prepared by her father two years before his death - The letter purported to give the applicant a lakefront building lot to be carved out of the deceased's property when sold - The application was allowed - The Probate Court refused the daughter's request for solicitor-client costs payable out of the estate - The Nova Scotia Court of Appeal held that the judge's reasons for exercising his discretion and awarding party and party costs had nothing to do with the submissions made to him for solicitor and client costs - He considered irrelevant factors, namely no reprehensible conduct - The foundation for his decision was not what was argued before him, and he failed to consider or explain why a party, standing in the place of an executor, was not entitled to solicitor and client costs when an executor generally was so entitled - He erred in principle, warranting appellate intervention - It was undisputed that the necessity of an application for proof in solemn form was caused by the testator's use of a handwritten document to express his testamentary wishes rather than formally updating his existing will with a lawyer - Had the executor brought the application, it would have been entitled to solicitor and client costs from his estate - It declined to do so because of the particular circumstances pertaining to the administration of this testator's estate - The daughter then acted reasonably and properly in bringing the application and successfully propounded the handwritten will as a testamentary document - These were exceptional circumstances (Civil Procedure Rule 77.03(2)) and justified solicitor and client costs - See paragraphs 42 to 89.

Practice - Topic 7455

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Estates and estate matters - [See both Executors and Administrators - Topic 5548 ].

Practice - Topic 7458

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Rare, exceptional or complex cases - [See second Executors and Administrators - Topic 5548 ].

Practice - Topic 8425

Costs - Appeals - Grounds - Error in principle - [See second Executors and Administrators - Topic 5548 ].

Practice - Topic 9012

Appeals - Restrictions on argument on appeal - Issues or points not previously raised - [See Wills - Topic 5166 ].

Wills - Topic 23

Testamentary instruments - Codicils - Testamentary intention - The deceased's daughter filed an application for proof in solemn form of a handwritten letter prepared by her father two years before his death - The letter purported to give the applicant a lakefront building lot to be carved out of the deceased's property when it was sold - The Probate Court allowed the application - There was no dispute that the letter met the technical requirements of a holograph codicil under s. 6(2) of the Wills Act - However, to be a valid holographic instrument, the letter also had to demonstrate a testamentary intention - The court found that it did - The court considered, inter alia, that although handwritten, the letter's contents were of a more formal or ceremonious nature than one would expect of an ordinary note from a father to his daughter; the letter used the language of "gift"; and the deceased also provided a reason for giving his daughter the lot - The Nova Scotia Court of Appeal upheld the decision on appeal - The judge identified the correct legal test, considered the document as a whole and the extrinsic evidence before him, and applied the law - The court reviewed the reasons and detected no palpable and overriding error in his analysis or conclusion that the letter written and signed by the testator contained a fixed and final expression of his intentions as to the disposal of the waterfront lot in the event that the property was not sold before his death - See paragraphs 24 to 41.

Wills - Topic 28

Testamentary instruments - Codicils - Holograph codicils - [See Wills - Topic 23 ].

Wills - Topic 5166

Construction - Directions of testator - Precatory words - The Probate Court held that the following letter was a valid holograph codicil: "Sunday Nov 14 / 010 Shannon Noseworthy my one and only Daughter at this time, this note is to confirm a prominis that I will give her a lake front Building lot on my property in Cole Harbor, Dartmouth the lot, the southern end borders Amorans land with a big oak tree on it. its to be free of all expenses taxes Etc. The lot will be taken out when my lake front Property is sold, and will be in accordance with other lake front lots. I hope this will be aggred with all concerned." - On appeal, the testator's widow relied on the statement "I hope this will be aggred [sic] with all concerned" to submit that the letter could not contain a fixed and final expression of intention to make a gift to his daughter - The Nova Scotia Court of Appeal held that this argument had not been raised or argued before the Probate judge and it refused to hear it on appeal - Further, the court rejected the widow's submission that "I hope this will be aggred [ sic ] with all concerned" constituted a condition which, if unsatisfied because one or more of the immediate family did not agree, meant that there was no fixed and final intention - The phrase "I hope" was precatory wording; it only expressed a wish and did not impose any imperative direction - See paragraphs 32 to 36.

Cases Noticed:

Prevost Estate v. Prevost Estate (2013), 327 N.S.R.(2d) 152; 1036 A.P.R. 152; 2013 NSCA 20, refd to. [para. 21].

Hayward Estate, Re (2011), 311 N.S.R.(2d) 136; 985 A.P.R. 136; 2011 NSCA 118, dist. [para. 23].

Norman Estate v. Watch Tower Bible and Tract Society of Canada (2014), 358 B.C.A.C. 190; 614 W.A.C. 190; 2014 BCCA 277, dist. [para. 23].

Gray Estate, Re, [1958] S.C.R. 392, appld. [para. 24].

Canada Permanent Trust Co. v. Bowman, [1962] S.C.R. 711, refd to. [para. 26].

R. v. Perka, Nelson, Hines and Johnson, [1984] 2 S.C.R. 232; 55 N.R. 1, refd to. [para. 33].

Ross v. Ross (1999), 181 N.S.R.(2d) 22; 560 A.P.R. 22; 1999 NSCA 162, refd to. [para. 33].

Sutherland Estate v. Nicoll Estate, [1944] S.C.R. 253, refd to. [para. 36].

Hayman v. Nicoll - see Sutherland Estate v. Nicoll Estate.

Saunders Estate, Re (2005), 236 N.S.R.(2d) 16; 749 A.P.R. 16; 2005 NSSC 216, refd to. [para. 36].

Fraser et al. v. Westminer Canada Ltd. et al. (2005), 233 N.S.R.(2d) 201; 739 A.P.R. 201; 2005 NSCA 27, refd to. [para. 42].

Minas Basin Holdings Ltd. v. Bryant (P.) Enterprises Ltd. et al. (2010), 289 N.S.R.(2d) 26; 916 A.P.R. 26; 2010 NSCA 17, refd to. [para. 43].

Hamilton v. Open Window Bakery Ltd. et al., [2004] 1 S.C.R. 303; 316 N.R. 265; 184 O.A.C. 209; 2004 SCC 9, refd to. [para. 43].

Wadden et al. v. BMO Nesbitt Burns (2015), 360 N.S.R.(2d) 39; 1135 A.P.R. 39; 2015 NSCA 48, refd to. [para. 43].

Benbow Estate, Re (1862), 2 Sw. & Tr. 487; 164 E.R. 1086 (Prob. Ct.), refd to. [para. 51].

Muirhead, Re, [1971] 1 All E.R. 609, red to. [para. 51].

St. Onge Estate v. Breau (2009), 345 N.B.R.(2d) 101; 889 A.P.R. 101; 2009 NBCA 36, refd to. [para. 63].

McDougald Estate, Re (2005), 199 O.A.C. 203 (C.A.), refd to. [para. 63].

McDougald Estate v. Gooderham - see McDougald Estate, Re.

Feinstein v. Freedman et al. (2014), 318 O.A.C. 85; 2014 ONCA 205, refd to. [para. 63].

Morash Estate v. Morash, [1997] N.S.R.(2d) Uned. 107 (C.A.), refd to. [para. 65].

Veinot v. Veinot Estate (1998), 167 N.S.R.(2d) 101; 502 A.P.R. 101 (S.C.), refd to. [para. 66].

Jollimore Estate, Re (2012), 312 N.S.R.(2d) 234; 987 A.P.R. 234; 2012 NSSC 8, refd to. [para. 69].

Jollimore Estate v. Nova Scotia - see Jollimore Estate, Re.

Fair Estate v. Fair Estate (1971), 2 N.S.R.(2d) 556 (C.A.), refd to. [para. 69].

Power Estate, Re (2007), 254 N.S.R.(2d) 176; 810 A.P.R. 176; 2007 NSSC 126 (Prob. Ct.), refd to. [para. 75].

McCully v. Rogers Estate (2012), 326 N.S.R.(2d) 1; 1033 A.P.R. 1; 2012 NSSC 435 (Prob. Ct.), refd to. [para. 75].

Pottie Estate, Re (2015), 355 N.S.R.(2d) 367; 1123 A.P.R. 367; 2015 NSSC 45, refd to. [para. 75].

Willisko v. Pottie Estate - see Pottie Estate, Re.

Barthe v. National Bank Financial Ltd. (2015), 359 N.S.R.(2d) 258; 1133 A.P.R. 258; 2015 NSCA 47, refd to. [para. 76].

Danyluk v. Ainsworth Technologies Inc. et al., [2001] 2 S.C.R. 460; 272 N.R. 1; 149 O.A.C. 1; 2001 SCC 44, refd to. [para. 80].

Rodaro et al. v. Royal Bank of Canada et al. (2002), 157 O.A.C. 203; 59 O.R.(3d) 74 (C.A.), refd to. [para. 81].

Fort Sackville Foundation v. Darby Estate (2010), 287 N.S.R.(2d) 164; 912 A.P.R. 164; 2010 NSSC 45 (Prob. Ct.), refd to. [para. 85].

Peach Estate, Re (2011), 303 N.S.R.(2d) 381; 957 A.P.R. 381; 2011 NSSC 230 (Prob. Ct.), refd to. [para. 86].

Fong Estate, Re (2011), 306 N.S.R.(2d) 370; 968 A.P.R. 370; 2011 NSSC 315 (Prob. Ct.), refd to. [para. 88].

Komonen v. Fong - see Fong Estate, Re.

Authors and Works Noticed:

Brown, Donald J.M., Civil Appeals (2015 Looseleaf Update), vol. 2, p. 13:3310 [para. 81].

Feeney, Thomas G., The Canadian Law of Wills (4th Ed.) (2015 Looseleaf Update), § 8.13 [para. 51].

Halsbury's Laws of England (4th Ed.) (2000 - Reissue), vol. 17(2), para. 271 [para. 51].

Counsel:

Jeremy Gay, for the appellant/respondent by cross-appeal;

Richard Niedermayer and Tanya Butler, for the respondent/appellant by cross-appeal Shannon Noseworthy;

Wayne J. Francis, for the respondent, The Bank of Nova Scotia Trust Company;

Sheldon Casavechia and Nicole Casavechia, respondents in person (not participating);

Josh Downey and Jace Downey, respondents in person (not participating).

This appeal was heard in Halifax, N.S., on February 9, 2015, by Saunders, Oland and Scanlan, JJ.A., of the Nova Scotia Court of Appeal. Oland, J.A., delivered the following decision for the court on June 11, 2015.