Fort Sackville Foundation v. Darby Estate, (2010) 287 N.S.R.(2d) 164 (ProbCt)

• Judge: Moir, J.
• Court: Probate Court of Nova Scotia (Canada)
• Case Date: January 29, 2010
• Jurisdiction: Nova Scotia
• Citations: (2010), 287 N.S.R.(2d) 164 (ProbCt);2010 NSSC 45

Fort Sackville Fdn. v. Darby Estate (2010), 287 N.S.R.(2d) 164 (ProbCt);

    912 A.P.R. 164

MLB headnote and full text

Temp. Cite: [2010] N.S.R.(2d) TBEd. FE.040

The Fort Sackville Foundation (applicant) v. Ross E. Hallett, in his capacity as personal representative of the Estate of John Darby (respondent)

(Hfx No. 315095; Probate No. 56651; 2010 NSSC 45)

Indexed As: Fort Sackville Foundation v. Darby Estate

Nova Scotia Probate Court

Moir, J.

February 9, 2010.

Summary:

Darby made a will in 2007 and died less than a year later. He made a gift of his residence and the contents to the "Heritage Society of Bedford". That society had disposed of its assets and surrendered its certificate of incorporation some years before the will was made. The Fort Sackville Foundation claimed to be the successor of the society. The personal representative and trustee of the estate opposed the claim. Beneficiaries supported the position taken by the estate.

The Nova Scotia Probate Court, in a decision reported at 287 N.S.R.(2d) 158; 912 A.P.R. 158; 2010 NSSC 27, dismissed the application. The Foundation was not the successor of the society, and cy-près could not be applied to the gift. The conditions of the gift and the consequences of their not being fulfilled were expressed in the will. Those conditions had not been and could not be fulfilled. Therefore, the gift was lapsed and the residence and contents were part of the residue. The parties made written submissions as to costs. The Foundation submitted that it should receive solicitor and client costs.

The Nova Scotia Probate Court awarded solicitor and client costs to each party out of the estate.

Executors and Administrators - Topic 5548

Actions by and against representatives - Costs - Where payable out of estate - In the main decision, the applicant unsuccessfully laid claim to a charitable gift under a will - It submitted that it should receive solicitor and client costs - The successful residuary beneficiaries submitted that the applicant should receive party and party costs or no costs at all, since the residue would be reduced by the amount of the costs - The Nova Scotia Probate Court awarded solicitor and client costs to each party out of the estate - "Disputes over a fund or an estate may give rise to exceptional circumstances as referred to in Rule 77.03(2). The discretion may be moved because the dispute, and the need for a determination, is created less by the parties than by the instrument that governs the fund or estate" - The issues in this case were fuelled by the wording of the will - The applicant's argument that it was the successor organization of the legatee was based on reason, as it was successor to its assets - The argument that the applicant could unconditionally receive the gift involved too much of an expansion of the cy-près doctrine, but the expansion was reasonably advocated.

Practice - Topic 7032.1

Costs - Party and party costs - Entitlement to party and party costs - Estate matters - [See Executors and Administrators - Topic 5548 ].

Practice - Topic 7328

Costs - Costs in probate proceedings - Solicitor and client costs - [See Executors and Administrators - Topic 5548 ].

Practice - Topic 7466

Costs - Solicitor and client costs - Entitlement to - Probate actions - [See Executors and Administrators - Topic 5548 ].

Cases Noticed:

Morash Estate v. Morash, [1997] N.S.R.(2d) Uned. 107 (C.A.), refd to. [para. 3].

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 77.03(2) [para. 4].

Rules of Civil Procedure (N.S.) - see Civil Procedure Rules (N.S.).

Rules of Court (N.S.) - see Civil Procedure Rules (N.S.).

Counsel:

Lyndsay Jardine and Suzanne Robichaud, articled clerk, for the applicant;

Kevin Gibson and David Graves, Q.C., for the respondent;

Timothy C. Matthews, Q.C., for the Canadian National Institute for the Blind, the Canadian Cancer Research Society, and the Board of Governors of McGill University.

This costs matter was determined by way of written submissions, the last of which was received on January 29, 2010. Moir, J., of the Nova Scotia Probate Court, rendered the following decision on February 9, 2010.