Harvey Estate, Re, (2006) 243 N.S.R.(2d) 109 (ProbCt)

Judge:Warner, J.
Court:Nova Scotia Probate Court
Case Date:February 17, 2006
Jurisdiction:Nova Scotia
Citations:(2006), 243 N.S.R.(2d) 109 (ProbCt);2006 NSSC 118
 
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Harvey Estate, Re (2006), 243 N.S.R.(2d) 109 (ProbCt);

    772 A.P.R. 109

MLB headnote and full text

Temp. Cite: [2006] N.S.R.(2d) TBEd. AP.045

In The Estate of Robert Charles Harvey, deceased.

(Estate No. 6809; 2006 NSSC 118)

Indexed As: Harvey Estate, Re

Nova Scotia Probate Court

Warner, J.

April 10, 2006.

Summary:

Harvey died intestate in 2004. He had been estranged for years from his four children and siblings, except his sister. Harvey and the sister opened a joint bank account in 1995. The account held $17,000, which was deposited solely by Harvey. The sister claimed the monies as the surviving joint tenant. Alternatively, she claimed the monies on the basis of unjust enrichment or on a quantum meruit basis for services rendered.

The Nova Scotia Probate Court allowed the application. Harvey's intention, as corroborated by independent material evidence (Evidence Act, s. 45) was that the monies belonged to his sister when he died. There was no resulting trust. Alternatively, the sister was entitled to the monies on the basis of unjust enrichment or on a quantum meruit basis for services rendered.

Banks and Banking - Topic 2733

Bank accounts - Joint accounts - Title to account - Resulting trust in favour of original owner of funds - Harvey died intestate in 2004 - He had been estranged for years from his four children and siblings, except his sister - Harvey and the sister opened a joint bank account in 1995 - The account held $17,000, which was deposited solely by Harvey - The sister claimed the monies as the surviving joint tenant - Alternatively, she claimed on the basis of unjust enrichment or on a quantum meruit basis for services rendered - The Nova Scotia Probate Court held that Harvey's intention, as corroborated by required independent material evidence (Evidence Act, s. 45) was that the monies were gifted to his sister when he died - Any presumption of a resulting trust was rebutted - Alternatively, the sister was entitled to the monies on the basis of unjust enrichment or on a quantum meruit basis for services rendered - The sister provided both domestic and business related services for 10 years without payment - The services exceeded those that one would provide without compensation on the basis of any familial obligation - There was a clear intention to gift the sister the balance of the account for the services she rendered up to Harvey's death.

Executors and Administrators - Topic 5700

Actions by and against representatives - Evidence - Claim by or against estate - Corroboration requirement - [See Banks and Banking - Topic 2733 ].

Gifts - Topic 953

Gifts inter vivos - Evidence and proof - Donor's intention - [See Banks and Banking - Topic 2733 ].

Restitution - Topic 62

Unjust enrichment - General - What constitutes - [See Banks and Banking - Topic 2733 ].

Restitution - Topic 2506

Benefit acquired at defendant's request - Recovery based on quantum meruit - Work or services performed - Presumption against right of relatives to remuneration - [See Banks and Banking - Topic 2733 ].

Cases Noticed:

Burns Estate v. Mellon (2000), 133 O.A.C. 83 (C.A.), refd to. [para. 12].

Bayley v. Trusts & Guaranty Co., [1931] 1 D.L.R. 500 (Ont. C.A.), refd to. [para. 13].

Johnstone v. Johnstone (1913), 28 O.L.R. 334 (C.A.), refd to. [para. 13].

O'Connell Estate, Re (1980), 44 N.S.R.(2d) 181; 83 A.P.R. 181; 1980 CarswellNS 243 (Prob. Ct.), affd. (1981), 45 N.S.R.(2d) 336; 86 A.P.R. 336; 1981 CarswellNS 90 (C.A.), refd to. [para. 15].

Thompson v. Coulter (1903), 34 S.C.R. 261, refd to. [para. 15].

McDonald v. McDonald (1903), 33 S.C.R. 145, refd to. [para. 15].

Paquette v. Chubb and Chubb Estate (1988), 29 O.A.C. 243 (C.A.), refd to. [para. 17].

Smallman v. Moore, [1948] S.C.R. 295, refd to. [para. 17].

Colborne v. Llewellyn Estate and Halifax Insurance Co. (1982), 57 N.S.R.(2d) 31; 120 A.P.R. 31 (T.D.), refd to. [para. 18].

Niles v. Lake, [1947] S.C.R. 291, refd to. [para. 19].

Scott Estate, Re (2005), 237 N.S.R.(2d) 390; 754 A.P.R. 390; 2005 NSCA 135, refd to. [para. 22].

Comeau v. Gregoire - see Scott Estate, Re.

Saylor et al. v. Brooks (2005), 203 O.A.C. 295; 2005 CarswellOnt 5896 (C.A.), refd to. [para. 23].

Saylor v. Madsen Estate - see Saylor et al. v. Brooks.

Peter v. Beblow, [1993] 1 S.C.R. 980; 150 N.R. 1; 23 B.C.A.C. 81; 39 W.A.C. 81, refd to. [para. 25].

Becker v. Pettkus, [1980] 2 S.C.R. 834; 34 N.R. 384, refd to. [para. 29].

MacFarlane v. Smith (2003), 256 N.B.R.(2d) 108; 670 A.P.R. 108; 2003 NBCA 6, refd to. [para. 29].

Burgess Estate, Re (1964), 4 N.S.R. 1965-69 361 (C.A.), refd to. [para. 31].

Walker v. Boughner (1889), 18 O.R. 448 (C.A.), refd to. [para. 31].

Comeau v. Boudreau Estate (1999), 179 N.S.R.(2d) 186; 553 A.P.R. 186; 1999 CarswellNS 260 (Prob. Ct.), refd to. [para. 33].

Kelly v. Bourn Estate and Bourn (1981), 45 N.S.R.(2d) 167; 86 A.P.R. 167 (T.D.), refd to. [para. 33].

Brown v. Millett (1979), 6 E.T.R. 88 (N.S.S.C.), refd to. [para. 34].

Faryna v. Chorny, 1951 CarswellBC 133 (C.A.), refd to. [para. 82].

Authors and Works Noticed:

Hull, Ian M., Joint Ownership On Death - Joint Accounts and Joint Assets in Estate and Capacity Litigation (2001), 34 E.T.R.(2d) 151, generally [para. 20].

Widdifield on Executors and Trustees (6th Ed.) (2003 Looseleaf Update, Release 3), pp. 3 to 16 [para. 13].

Counsel:

James J. White, for the applicant, Deborah Harvey;

Joseph Cuffari, for the Estate of Robert Charles Harvey.

This application was heard on February 17, 2006, at Kentville, N.S., before Warner, J., of the Nova Scotia Probate Court, who delivered the following judgment on April 10, 2006.

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