Loughead Estate, Re, 2013 NSSC 236

Judge:Duncan, J.
Court:Nova Scotia Probate Court
Case Date:June 05, 2013
Jurisdiction:Nova Scotia
Citations:2013 NSSC 236;(2013), 332 N.S.R.(2d) 276 (ProbCt)
 
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Loughead Estate, Re (2013), 332 N.S.R.(2d) 276 (ProbCt);

    1052 A.P.R. 276

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Temp. Cite: [2013] N.S.R.(2d) TBEd. JL.053

In the Estate of William Parker Loughead, Deceased In the matter of an application by Kenda Harris

(ST410673; Probate 15639; 2013 NSSC 236)

Indexed As: Loughead Estate, Re

Nova Scotia Probate Court

Duncan, J.

July 19, 2013.

Summary:

The testator named his nephew, Mark, as alternate personal representative to act in the event that the named executor, the testator's wife (Helen), was unable or unwilling to act. The testator died and Helen renounced in favour of Mark. Harris expressed concerns with respect to Mark's conduct as personal representative and sought financial disclosure. She applied for an order removing Mark from the role of personal representative of the testator's estate and sought to be named as the personal representative in his stead.

The Nova Scotia Probate Court allowed the application.

Executors and Administrators - Topic 384

Appointment, qualification and tenure - Executors - Removal and suspension - Conflict of interest - The testator named his nephew, Mark, as alternate personal representative to act in the event that the named executor, the testator's wife (Helen), was unable or unwilling to act - The testator died and Helen renounced in favour of Mark - Harris expressed concerns with respect to Mark's conduct as personal representative and sought financial disclosure - She applied for an order removing Mark from the role of personal representative of the testator's estate and sought to be named as the personal representative in his stead - The Nova Scotia Probate Court allowed the application - Removal of a personal representative should not be done lightly or without good reason based on evidence - Such evidence existed here - Section 61 of the Probate Act made the best interest of the beneficiary paramount and Mark's conduct had been inconsistent with that duty - Trust property had been put at risk, and to advance his personal interests - The estate had been engaging in investments that it had no apparent need of, causing unnecessary delay - Payments made to Mark needed proper scrutiny by the estate under the charge of someone who was not personally interested in the outcome - Harris had been proposed as a new personal representative - The testator saw fit to name her and there was no suggestion of taint.

Executors and Administrators - Topic 387

Appointment, qualification and tenure - Executors - Removal and suspension - Best interests of beneficiaries - [See Executors and Administrators - Topic 384 ].

Cases Noticed:

Letterstedt v. Broers (1884), 9 App Case 377, refd to. [para. 15].

Winter Estate, Re (2001), 197 N.S.R.(2d) 385; 616 A.P.R. 385; 2001 CarswellNS 379 (S.C.), affd. (2002), 202 N.S.R.(2d) 5; 632 A.P.R. 5; 2002 CarswellNS 66 (C.A.), refd to. [para. 15].

Stadelmier v. Hoffman (1986), 25 E.T.R. 174 (Ont. Surr. Ct.), refd to. [para. 17].

Counsel:

Ann Levangie, for the applicant;

Peter Lederman, Q.C., for the respondent.

This application was heard at Truro, Nova Scotia, on June 5, 2013, by Duncan, J., of the Nova Scotia Probate Court, who delivered the following written judgment on July 19, 2013.

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