Legge Estate, Re, 2001 NSSC 156

• Judge: Coughlan, J.
• Court: Probate Court of Nova Scotia (Canada)
• Case Date: June 29, 2001
• Jurisdiction: Nova Scotia
• Citations: 2001 NSSC 156;(2001), 203 N.S.R.(2d) 1 (ProbCt)

Legge Estate, Re (2001), 203 N.S.R.(2d) 1 (ProbCt);

 635 A.P.R. 1

MLB headnote and full text

Temp. Cite: [2001] N.S.R.(2d) TBEd. NO.018

In The Matter Of the Estate of Harold B. Legge, late of Port Williams, Kings County, Nova Scotia

(Probate No. 10,330; 2001 NSSC 156)

Indexed As: Legge Estate, Re

Nova Scotia Probate Court

County of Kings

Coughlan, J.

November 1, 2001.

Summary:

The major asset in a testator's estate was his shares of common stock in his company. His will set up a life trust by which his wife received the dividends from 70% of his shares in the company. The company declared capital dividends and the shares were sold. By court order, the first capital dividend was to be held in trust and the income from 70% of the fund paid to the widow. The executors and trustees applied for a determination of the amount due to the widow from the second capital dividend and how an anticipated shortfall in the estate should be apportioned.

The Nova Scotia Probate Court held that income from 70% of the second capital dividend should be paid to the widow. Because the terms of the will excluded the "even hand" rule, the court determined the priority for abatement.

Executors and Administrators - Topic 2800

Duties and powers of executors and ad­ministrators - Payment of debts - General principles - The Nova Scotia Probate Court stated that "absent instruction to the con­trary in a will, the payment of debts and expenses are to be paid as follows: first, out of the residuary personalty; second, out of the residuary (not specifically devised) real property; third, out of general bequests; fourth, out of demonstrative bequests; fifth, out of specific bequests; and finally, out of specific devises of real property" - The court stated further that "the burden of abatement is to be born on a pro-rata basis within each class" - See paragraphs 21 and 22.

Wills - Topic 3246

Gifts - Abatement of gifts - Priorities - The major asset in a testator's estate was his shares of common stock in his com­pany - His will set up a life trust by which his wife received the dividends from 70% of his shares in the company - The com­pany declared capital dividends and the shares were sold - By court order, the first capital dividend was to be held in trust and the income from 70% of the fund paid to the widow - The executors and trustees ap­plied for a determination of the amount due to the widow from the second capital divi­dend and how an anticipated shortfall in the estate should be apportioned - The Nova Scotia Probate Court held that in­come from 70% of the second capital divi­dend should be paid to the widow - Be­cause the terms of the will excluded the "even hand" rule, the court determined that any shortfall would be paid first, out of the residuary personalty; second, out of the residuary real property; third, out of gen­eral bequest; fourth, out of specific be­quests, including the proceeds of the capi­tal distributions and proceeds of the sale of the shares of the company; and finally, out of the specifically devised real property - See paragraphs 20 to 25.

Cases Noticed:

Lottman et al. v. Stanford et al. (1980), 31 N.R. 1; 107 D.L.R.(3d) 28 (S.C.C.), refd to. [para. 18].

Authors and Works Noticed:

Bailey, S.J., The Law of Wills (7th Ed.), p. 112 [para. 23].

Feeney, Thomas G., The Canadian Law of Wills (3rd Ed. 1987), vol. 1, p. 251 [para. 22]; vol. 2, pp. 13 [para. 10]; 65 [para. 11].

Spencer-Bower and Turner, Res Judicata (2nd Ed. 1969), p. 9 [para. 7].

Waters, Law of Trusts in Canada (2nd Ed. 1984), p. 787 [para. 16].

Counsel:

Trinda L. Ernst, Q.C., proctor;

James E. Dewar, Q.C., for Sharon Legge;

Peter M.S. Bryson, Q.C., for Carl K. Miller, executor and trustee;

Walter O. Newton, Q.C., executor and trustee;

Heather Hill and Dan Oulton (articled clerk), for Robert P. Legge;

Lawrence E. Legge, unrepresented.

This matter was heard on June 29, 2001, at Kentville, Nova Scotia, before Coughlan, J., of the Nova Scotia Probate Court, Kings County, who delivered the following judg­ment on November 1, 2001.