Forbes Estate, Re, (1991) 110 N.S.R.(2d) 361 (ProbCt)

• Court: Probate Court of Nova Scotia (Canada)
• Case Date: October 01, 1991
• Jurisdiction: Nova Scotia
• Citations: (1991), 110 N.S.R.(2d) 361 (ProbCt)

Forbes Estate, Re (1991), 110 N.S.R.(2d) 361 (ProbCt);

  299 A.P.R. 361

MLB headnote and full text

In the Matter of The Estate of Helen C. Forbes, deceased, Late of Kentville in the County of Kings between Central Guaranty Trust Company Co-Executor and Co-Trustee of the Estate of Helen C. Forbes, deceased (appellant) v. R. Peter Muttart, Q.C., Barrister, Co-Executor, Co-Trustee, and Proctor of the Estate of Helen C. Forbes, deceased (respondent)

(9844)

Indexed As: Forbes Estate, Re

Nova Scotia Probate Court

County of Kings

Hall, J.C.C.

November 15, 1991.

Summary:

A registrar of probate apportioned an executors' commission between two co-executors. One of the executors appealed.

The Nova Scotia Probate Court dismissed the appeal.

Executors and Administrators - Topic 7251

Compensation - Amount of - Relevant considerations - The Nova Scotia Probate Court stated that, unless otherwise agreed, one should start with the presumption that the executors' commission will be divided equally between co-executors - Then consideration must be given to the amount of work and responsibility incurred by each - In estates that are simple to ad­minister the dominant factor is the re­sponsibility - See paragraph 23.

Executors and Administrators - Topic 7253

Compensation - Amount of - Apportion­ment between co-executors - The Nova Scotia Probate Court stated that co-execu­tors have a duty to discuss and agree on an apportionment of their commission before administering the estate - See paragraphs 24 to 26.

Executors and Administrators - Topic 7253

Compensation - Amount of - Apportion­ment between co-executors - A testatrix appointed two co-executors to administer her estate - Both executors were experi­enced in estate matters - The will was admitted to probate and within a year the estate was settled - The registrar of probate apportioned 55% of the executors' commission to the executor who acted as a consultant and participated in all major decisions including family conflicts - The remaining 45% was apportioned to the co-executor who did the mechanical work - The Nova Scotia Probate Court affirmed the apportionment.

Cases Noticed:

MacDonald, Re, [1925] 4 D.L.R. 743, refd to. [para. 17].

Scott Estate, Re (1954), 41 M.P.R. 323, refd to. [para. 17].

Sproule Estate, Re, [1979] 4 W.W.R. 670; 17 A.R. 58; 95 D.L.R.(3d) 458, refd to. [para. 17].

Verbonac, Re (1954), 31 Sask.R. 161, refd to. [para. 17].

City Equitable Fire Insurance Co. Ltd., Re, [1925] Ch. 407, refd to. [para. 17].

Statutes Noticed:

Probate Act, R.S.N.S. 1989, c. 359, sect. 76 [paras. 15, 23].

Trustee Act, R.S.N.S. 1989, c. 479, sect. 29, sect. 62 [para. 16]; sect. 63 [paras. 16, 21].

Counsel:

Peter Bryson, for the applicant;

Michael Coyle, for the respondent.

This action was heard on October 1, 1991, at Kentville, N.S., before Hall, J.C.C., of the Nova Scotia Probate Court, who delivered the following judgment on November 15, 1991.