Greenough Estate, Re, 2008 NSSC 355

Judge:Duncan, J.
Court:Nova Scotia Probate Court
Case Date:November 12, 2008
Jurisdiction:Nova Scotia
Citations:2008 NSSC 355;(2008), 271 N.S.R.(2d) 321 (ProbCt)
 
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Greenough Estate, Re (2008), 271 N.S.R.(2d) 321 (ProbCt);

    867 A.P.R. 321

MLB headnote and full text

Temp. Cite: [2008] N.S.R.(2d) TBEd. NO.030

In The Matter Of the Estate of Earle E. Greenough, deceased;

 

And In The Matter Of a claim by Bryan Greenough under Regulation 48(1) made pursuant to the Probate Act 2000, c. 31 and an objection by Bryan Greenough made pursuant to Regulation 55(3)(c) made pursuant to the Probate Act

(SH 299953; 2008 NSSC 355)

Indexed As: Greenough Estate, Re

Nova Scotia Probate Court

Duncan, J.

November 27, 2008.

Summary:

Greenough executed a will on September 3, 2006, and died the following day. The will directed that Greenough's common law spouse, Comeau, was to receive the remaining mortgage payments due to Greenough on a property for which Greenough and his son, Bryan, were mortgagees, sharing the mortgage payments half and half. The rest and residue of the estate went to Greenough's other three children. Bryan was not a beneficiary of the will. Comeau was granted probate of the will. Bryan filed a claim under regulation 48(1) of the Probate Act, asserting that he and Greenough had an agreement that entitled Bryan to payment of Greenough's half of the mortgage proceeds from January 2005 to its discharge. Bryan also filed a notice of objection to accounts under regulation 55(3)(c) of the Probate Act, asserting that the conveyance in September 2001 of another property from Greenough to Greenough and Comeau in joint tenancy was a fraudulent conveyance done for the purpose of defeating or delaying Bryan as a contingent creditor.

The Nova Scotia Probate Court dismissed both the claim and the notice of objection.

Contracts - Topic 7952

Statute of frauds - General - When applicable - Greenough and his son held a property as joint tenants - They operated a plumbing business on the property - In 2000, Greenough wanted to retire - The property was sold - $80,000 of the purchase price was secured by a vendor take back mortgage, naming both Greenough and his son as the mortgagees - The terms called for a monthly payment of $1,102, beginning in January 2001 and ending in December 2010 - There were cash proceeds of $90,000 from the sale available for distribution - The son received $14,000, while Greenough received the rest - The monthly mortgage payments were split equally - Due to a dispute over the distribution of the cash proceeds, Greenough and his son did not speak to each other for five years - Greenough executed a will on September 3, 2006 - The will specified that the remaining mortgage payments due to Greenough were to be paid to his common law spouse, Comeau - The son was not a beneficiary of the will - Greenough died on September 4, 2006 - Comeau was granted probate of the will - The son filed a claim under regulation 48(1) of the Probate Act, asserting that he and Greenough had an agreement that entitled the son to payment of Greenough's half of the mortgage proceeds from January 2005 to its discharge - The Nova Scotia Probate Court dismissed the claim - As an agreement that was not to be performed within one year, the alleged agreement was subject to s. 7(e) of the Statute of Frauds - The evidence failed to establish compliance with s. 7(e) - Therefore, the claim failed - Even if the Statute of Frauds did not apply, there was no valid and enforceable oral contract - Under s. 45 of the Evidence Act, the son's assertions regarding the agreement were insufficient to found his claim without corroboration as to material evidence - The court admitted evidence provided by the son's two sisters regarding statements made by Greenough about the alleged agreement as declarations against pecuniary interest - However, the court questioned the accuracy and truthfulness of the testimony - See paragraphs 5 to 93.

Contracts - Topic 8163

Statute of frauds - Contracts within statute - Agreement not to be performed within a year - Requirement of writing - [See Contracts - Topic 7952 ].

Evidence - Topic 1629

Hearsay rule - Hearsay rule exceptions and exclusions - Statements of deceased persons - Statements against interest - [See Contracts - Topic 7952 ].

Evidence - Topic 5202

Witnesses - Corroboration - General principles - When required - [See Contracts - Topic 7952 ].

Executors and Administrators - Topic 5700

Actions by and against representatives - Evidence - Claim by or against estate - Corroboration requirement - [See Contracts - Topic 7952 ].

Fraud and Misrepresentation - Topic 1403

Fraudulent conveyances and preferences - Impeachable conveyances and preferences under Statute of Elizabeth (1571) - Intention required - [See Fraud and Misrepresentation - Topic 1406 ].

Fraud and Misrepresentation - Topic 1406

Fraudulent conveyances and preferences - Impeachable conveyances and preferences under Statute of Elizabeth (1571) - Conditions precedent to setting aside conveyance - Greenough and Comeau began a common law relationship in 1996 - In September 2000, Greenough purchased a property for $4,000 - Comeau provided $1,500 of the purchase price - They built a house together on the property with both contributing money and labour - In September 2001, Greenough granted the property to himself and Comeau as joint tenants - The deed stated that there was consideration of one dollar and other good and valuable consideration for the transfer - Greenough executed a will on September 3, 2006 - The will directed that Comeau was to receive the remaining mortgage payments due to Greenough on a property for which Greenough and his son, Bryan, were mortgagees, sharing the mortgage payments half and half - The rest and residue of the estate went to Greenough's other three children - Bryan was not a beneficiary of the will - Greenough died on September 4, 2006 - Comeau was granted probate of the will - The son filed a notice of objection to accounts under regulation 55(3)(c) of the Probate Act, asserting that the conveyance of the property to Greenough and Comeau in joint tenancy was a fraudulent conveyance under the Statute of Elizabeth done for the purpose of defeating or delaying Bryan as a contingent creditor - The Nova Scotia Probate Court dismissed the objection - The allegation lacked an air of reality - The parties exchanged more than minimal valuable consideration, even if the "one dollar" was not exchanged - Further, it was too speculative to suggest that Greenough transferred the property to himself and Comeau as a way to ensure that she retained the property after his death and in defiance of potential creditors - It was more consistent to conclude that the transfer reflected Comeau's contribution to the property - See paragraphs 94 to 120.

Cases Noticed:

Stuart v. Mott (1893), 23 S.C.R. 384, refd to. [para. 48].

Harris v. Lindeborg, [1931] S.C.R. 235, refd to. [para. 48].

Claussen Walters & Associates Ltd. v. Murphy (2001), 195 N.S.R.(2d) 201; 609 A.P.R. 201 (S.C.), refd to. [para. 51].

South Shore Venture Capital Ltd. v. Haas (1994), 131 N.S.R.(2d) 9; 371 A.P.R. 9 (S.C.), refd to. [para. 55].

R. v. Blackman (L.) (2008), 376 N.R. 265; 239 O.A.C. 368; 2008 SCC 37, refd to. [para. 84].

Bank of Montreal v. Crowell and Crowell (1980), 37 N.S.R.(2d) 292; 67 A.P.R. 292 (T.D.), refd to. [para. 111].

Geophysical Service Inc. v. Sable Mary Seismic Inc. et al. (2007), 260 N.S.R.(2d) 337; 831 A.P.R. 337 (C.A.), refd to. [para. 112].

Authors and Works Noticed:

Anger and Honsberger, The Law of Real Property (3rd Ed. 2006) (2008 Looseleaf), p. 25-18 [para. 113].

McCamus, John D., The Law of Contracts (2005), pp. 168 [para. 54]; 175 [para. 56].

Waddams, Stephen M., The Law of Contracts (5th Ed. 2005), pp. 82 to 85 [para. 114]; 163 [para. 51].

Counsel:

Matthew Moir, for Bryan Greenough;

Alan MacNeill, for the Estate of Earle E. Greenough.

This claim and notice of objection were heard at Halifax, Nova Scotia, on November 12, 2008, by Duncan, J., of the Nova Scotia Probate Court, who delivered the following written decision on November 27, 2008.

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