Dilney Estate, Re, (2011) 299 N.S.R.(2d) 279 (ProbCt)

• Judge: Bourgeois, J.
• Court: Probate Court of Nova Scotia (Canada)
• Case Date: January 24, 2011
• Jurisdiction: Nova Scotia
• Citations: (2011), 299 N.S.R.(2d) 279 (ProbCt);2011 NSSC 29

Dilney Estate, Re (2011), 299 N.S.R.(2d) 279 (ProbCt);

    947 A.P.R. 279

MLB headnote and full text

Temp. Cite: [2011] N.S.R.(2d) TBEd. JA.057

In the Estate of Blanche Dilney, deceased

Application of Judy Sampson, executrix

(Syd. No. 331980; 19258; 2011 NSSC 29)

Indexed As: Dilney Estate, Re

Nova Scotia Probate Court

Bourgeois, J.

January 24, 2011.

Summary:

At issue was the interpretation of the following provision in the deceased's will: "I DIRECT my Trustee to transfer, pay over and deliver to my son, ..., the use and utilization of two (2) acres of land that his business is situate on including a right of way access until the business ceases operation or my son, ..., passes away at which time it will be sold at fair market value and the balance of the sale proceeds, after deductions of real estate commissions and legal fees and other closing expenses, shall fall into and form part of the rest and residue of my Estate". Prior to her death, the deceased had her land surveyed to create two parcels: Lots 2002-1 and 2002-2.

The Nova Scotia Probate Court held that "a) [the son] is entitled to a life estate in a single parcel of real property of 2 acres in area, and located within Lot 2002-2; b) The life estate is to terminate upon the death of [the son] or earlier, if he ceases to use the property in question for business purposes; and c) [the son] is entitled to select the location of the 2 acre parcel, however, it must be, at least in part, adjacent to his lot and the garage ...".

Wills - Topic 7400

Construction - Quantity of interest taken - Life interest - General - At issue was the interpretation of the following provision in the deceased's will: "I DIRECT my Trustee to transfer, pay over and deliver to my son, ..., the use and utilization of two (2) acres of land that his business is situate on including a right of way access until the business ceases operation or my son, ..., passes away at which time it will be sold at fair market value and the balance of the sale proceeds, after deductions of real estate commissions and legal fees and other closing expenses, shall fall into and form part of the rest and residue of my Estate" - Prior to her death, the deceased had her land surveyed to create two parcels: Lots 2002-1 and 2002-2 - The Nova Scotia Probate Court held that "a) [the son] is entitled to a life estate in a single parcel of real property of 2 acres in area, and located within Lot 2002-2; b) The life estate is to terminate upon the death of [the son] or earlier, if he ceases to use the property in question for business purposes; and c) [the son] is entitled to select the location of the 2 acre parcel, however, it must be, at least in part, adjacent to his lot and the garage ...".

Wills - Topic 7412

Construction - Quantity of interest taken - Life interest - Termination of - [See Wills - Topic 7400 ].

Cases Noticed:

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. 17].

Counsel:

David Parsons, Q.C., for the applicant, Judy Sampson;

David MacIsaac and Lee Anne MacLeod-Archer, for the respondent, Richard Dilny.

This case was heard on January 12 and 13, 2011, in Sydney, Nova Scotia, by Bourgeois, J., of the Nova Scotia Probate Court, who delivered the following judgment on January 24, 2011.