Kenny v. Kenny Estate, 2016 NSSC 256

• Judge: Pickup, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: September 28, 2016
• Jurisdiction: Nova Scotia
• Citations: 2016 NSSC 256;(2016), 377 N.S.R.(2d) 289 (SC)

Kenny v. Kenny Estate (2016), 377 N.S.R.(2d) 289 (SC);

    1187 A.P.R. 289

MLB headnote and full text

Temp. Cite: [2016] N.S.R.(2d) TBEd. SE.043

Erin Kenny and Jennifer Kenny (applicants) v. Angela Moss as executrix of the Estate of Leslie Kenny (respondent)

(Hfx. No. 439153; Probate No. 60774; 2016 NSSC 256)

Indexed As: Kenny v. Kenny Estate

Nova Scotia Supreme Court

Pickup, J.

September 28, 2016.

Summary:

By a will dated December 2004, Leslie Kenny left his entire estate to his wife, Audrey, with the proviso that if she predeceased him his estate was to be divided between his two children, Philip Kenny and Angela Moss. Philip and Audrey predeceased him in May 2011 and June 2012, respectively. Leslie Kenny executed a new will in November 2012 and died on June 3, 2013. The 2012 will was admitted to Probate and a general grant of Probate was issued on July 29, 2013. Leslie Kenny's daughter Angela was the sole beneficiary under the will. Erin Kenny, who was Leslie's granddaughter and Philip's daughter, filed an application for proof in solemn form on May 2, 2015. Angela, as personal representative of the estate, filed a notice of objection on October 1, 2015, in which she objected to Erin's application. The issues on the application were as follows: (i) is Erin Kenny "a person interested in the estate" within the meaning of the Probate Act, S.N.S. 2000, c. 31, s. 31 and the Probate Court Practice, Procedure and Forms Regulations, N.S. Reg. 119/2001; (ii) was there any portion of the estate remaining undistributed as at the date of the application; (iii) who has the burden of proof, and did the doctrine of suspicious circumstances apply; and (iv) did Leslie Kenny have the required capacity when he executed the will?

The Nova Scotia Supreme Court, in a decision reported at (2016), 376 N.S.R.(2d) 271; 1185 A.P.R. 271, held that, while it was satisfied that Erin Kenny was "a person interested in this estate" and had standing to bring the application, when the application was filed, all assets of the estate had been distributed. There being no assets left in the estate, the court dismissed the application. Alternatively, the court held that while the doctrine of suspicious circumstances applied, Angela had met her burden to establish that Leslie had the necessary testamentary capacity when he executed the 2012 will. He understood the implications of what he was doing, what property he possessed and who would benefit. Angela sought costs on the application.

The Nova Scotia Supreme Court ordered the applicant to pay $16,250 in costs, plus disbursements of $3,733.89, for a total of $19,983.89.

Executors and Administrators - Topic 5548

Actions by and against representatives - Costs - Where payable out of estate - [See Practice - Topic 7326 ].

Practice - Topic 6963

Costs - Definitions - Amount involved - [See Practice - Topic 7326 ].

Practice - Topic 7032.1

Costs - Party and party costs - Entitlement to - Estate matters - [See Practice - Topic 7326 ].

Practice - Topic 7326

Costs - Party and party costs - Costs in probate proceedings - Unsuccessful opposition to proof of will - The applicant's application for proof in solemn form was dismissed on the primary ground that by the time she commenced the proceeding there were no assets left in the estate, and the alternate ground that the respondent had established that the testator had testamentary capacity when he made the will - The respondent sought costs - The applicant sought solicitor-client costs to be paid out of the estate, submitting that her application was appropriate because the testator's mental capacity was in a state of decline and warranted further investigation - The Nova Scotia Supreme Court stated that recent appellate authority indicated that an unsuccessful applicant (who was not the representative of the estate) was not automatically or presumptively entitled to costs at all, let alone solicitor-client costs, simply on the basis of having brought a non-frivolous application; general costs rules would govern - Further, it was arguable that it was not reasonable for the applicant to bring the application, given the plain wording of the Probate Act section that disposed of the application - The court also rejected the applicant's alternative claim for party-and-party costs - Recent case law suggested that a party that proceeded in the face of a plainly-worded statutory provision that nullified their claim should not receive costs - The court ordered the applicant to pay $16,250 in costs, plus disbursements of $3,733.89, for a total of $19,983.89 - The amount involved was as stated in the inventory ($109,731.79).

Practice - Topic 7328

Costs - Party and party costs - Costs in probate proceedings - Solicitor and client or solicitor and his own client costs - [See Practice - Topic 7326 ].

Practice - Topic 7455

Costs - Solicitor and client costs - Entitlement to - Estates and estate matters - [See Practice - Topic 7326 ].

Practice - Topic 7466

Costs - Solicitor and client costs - Entitlement to - Probate actions - [See Practice - Topic 7326 ].

Counsel:

Brian Casey, Q.C., and Geoffrey J. Franklin, for the applicants;

Brian F. Bailey, for the respondent.

This costs matter was heard by way of written submissions dated August 22 and 31, 2016, by Pickup, J., of the Nova Scotia Supreme Court, who delivered the following decision on September 28, 2016.