Legg v. Nicholson, (2002) 208 N.S.R.(2d) 142 (SC)

• Judge: Goodfellow, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: September 25, 2002
• Jurisdiction: Nova Scotia
• Citations: (2002), 208 N.S.R.(2d) 142 (SC);2002 NSSC 217

Legg v. Nicholson (2002), 208 N.S.R.(2d) 142 (SC);

 652 A.P.R. 142

MLB headnote and full text

Temp. Cite: [2002] N.S.R.(2d) TBEd. OC.027

Harold Edward O. Legg (plaintiff) v. Lillian Melina Nicholson (defendant)

(S.H. 175444; 2002 NSSC 217)

Indexed As: Legg v. Nicholson

Nova Scotia Supreme Court

Goodfellow, J.

September 25, 2002.

Summary:

A mother died on August 12, 1997 at age 87. Her 1996 will named her son and daugh­ter co-executors and trustees and equally divided her property between them. The bulk of the estate was over $109,000 in the mother's bank account. In November 1996, the son arranged to have the account made joint with him and his mother. The son eventually transferred all of the monies to his own name. The son claimed the joint account monies were a gift. The daughter submitted that the monies were an estate asset.

The Nova Scotia Supreme Court granted judgment to the daughter against the son. The account monies were not a gift, but an estate asset to be accounted for. The mother lacked the mental capacity to execute the documents creating the joint account with her son. Alternatively, the joint account only defined the relationship between the account holders and the bank. It did not transfer a beneficial interest in the funds to the son. Further, if the mother had the required mental capacity, the transfer of funds would be set aside on the basis that it resulted from undue influence exerted by her son. The court set aside transfers of real property from the son to his wife, which were done to shield those assets from being executed on to satisfy any judgment to his sister.

Banks and Banking - Topic 2733

Bank accounts - Joint accounts - Title to account - Resulting trust in favour of original owner of funds - [See Fraud and Misrepresentation - Topic 1278 ].

Fraud and Misrepresentation - Topic 1278

Fraudulent conveyances and preferences - Conveyances and preferences impeachable by creditors or others - What constitutes to "hinder or delay" - A mother died in 1997 at age 87 - Her 1996 will named her son and daughter as co-executors and expressed her life-long intention to equally divide her property between them - Shortly before her death, while the mother suffered from dementia, the son had her transfer her funds to a joint bank account in his and her names - The son, who had alcohol and gambling addictions, took all of the monies - When sued by his sister for her share of the estate, the son claimed the funds were a gift - He conveyed his interest in two properties to his wife without consideration - The Nova Scotia Supreme Court granted judgment to the daughter - The mother lacked the mental capacity to execute the documents to create the joint bank account - The funds were an estate asset, not a gift - Alternatively, even if there was capacity, there was no intention to transfer a bene­ficial interest to the son - The joint account merely defined the relationship between the account holders and the bank - Further, any gift would have been invalid on the basis that it resulted from undue influence exerted by the son - The court also set aside the conveyances of real property as they were clearly done to defeat creditors and avoid the consequences of his gambling and alcohol addictions (theft of estate assets to which his sister was entitled).

Gifts - Topic 301

Capacity to make and receive gifts - In­competence of donor - [See Fraud and Misrepresentation - Topic 1278 ].

Gifts - Topic 724

Gifts inter vivos - Transfers in joint tenan­cy - Transfers to joint bank accounts - [See Fraud and Misrepresentation - Topic 1278 ].

Gifts - Topic 773

Gifts inter vivos - Grounds for invalidity - Undue influence - [See Fraud and Mis­representation - Topic 1278 ].

Trusts - Topic 6145

The trustee - Breach of trust - Theft of funds - [See Fraud and Misrepresenta­tion - Topic 1278 ].

Cases Noticed:

Niles v. Lake, [1947] S.C.R. 291; [1947] 2 D.L.R. 248, refd to. [para. 16].

McKenna Estate, Re (1994), 134 N.S.R.(2d) 218; 383 A.P.R. 218 (Prob. Ct.), refd to. [para. 18].

Muttart Estate et al. v. Jones (1985), 137 N.S.R.(2d) 116; 391 A.P.R. 116 (S.C.), refd to. [para. 22].

Goodman Estate v. Geffen, [1991] 2 S.C.R. 353; 27 N.R. 241; 125 A.R. 81; 14 W.A.C. 81; 81 D.L.R.(4th) 211, refd to. [para. 22].

Gilfoy et al. v. Kelloway et al. (2000), 184 N.S.R.(2d) 226; 573 A.P.R. 226 (S.C.), refd to. [para. 31].

Aulwes v. Mai (2002), 207 N.S.R.(2d) 314; 649 A.P.R. 314 (S.C.), refd to. [para. 32].

Counsel:

Harold Edward O. Legg and Loreen Legg, self-represented;

David L. Parsons, Q.C., and Alan J. Stanwick, for the defendant.

This action was heard on September 23-24, 2002, at Halifax, N.S., before Goodfellow, J., of the Nova Scotia Supreme Court, whose following oral judgment of September 25, 2002, was released in writing on September 27, 2002.