MacIntyre Estate, Re, (1989) 92 N.S.R.(2d) 110 (ProbCt)

• Judge: MacDonnell, J.
• Court: Probate Court of Nova Scotia (Canada)
• Case Date: June 15, 1989
• Jurisdiction: Nova Scotia
• Citations: (1989), 92 N.S.R.(2d) 110 (ProbCt)

MacIntyre Estate, Re (1989), 92 N.S.R.(2d) 110 (ProbCt);

              237 A.P.R. 110

MLB headnote and full text

In the Estate of Alphonsus H. MacIntyre, deceased

Indexed As: MacIntyre Estate, Re

Nova Scotia Probate Court

MacDonnell, J.

June 15, 1989.

Summary:

MacIntyre died in 1966. His will named two executors. Probate of the will was granted in 1966, but the executors did nothing for the next 20 years. Specific bequests were ignored. The executors permitted MacIntyre's widow to have all estate income. In 1987 a beneficiary applied for the executors to show cause why they should not proceed with the settlement of the estate and why they should not be removed as executors. The beneficiary subsequently asked the court to consider the application as seeking directions respecting the proper method of distributing the remaining estate assets. Counsel agreed on seven issues to be determined (see paragraph 6).

The Nova Scotia Probate Court resolved the stated issues.

Equity - Topic 2066

Equitable defences - Laches - Claims under will - Twenty years after a testator's death the executors had still not paid out specific bequests - The executors claimed a beneficiary's laches precluded present recovery of her bequest - The Nova Scotia Probate Court stated that mere laches would not defeat the beneficiary's claim, where there was no benefit to the beneficiary and no connivance in the executors' breach of trust - See paragraphs 44 to 48.

Executors and Administrators - Topic 2001

Duties and powers - General duties - After their appointment by the Court of Probate in 1966, executors did not comply with the requirements of the Probate Act, did not arrange for the appointment of appraisers and filed no inventory - No advertisement was placed in the Royal Gazette - No records were kept, no trust account set up and 20 years later the trust directions in the will were not followed - All estate income was paid to the testator's widow - The Nova Scotia Probate Court stated that the executors failed to perform their duties under the Probate Act - The court stated that their conduct disentitled them to a commission under the Act - See paragraphs 22 to 29.

Executors and Administrators - Topic 5245

Actions against executors - Defences - Acquiescence - A beneficiary had still not received her bequest 20 years after the testator's death - There had been no publication of a notice in the Royal Gazette - The beneficiary lacked detailed knowledge respecting estate income and property - The Nova Scotia Probate Court held that absent such knowledge the beneficiary did not acquiesce in the executors' conduct - See paragraphs 37 to 43.

Executors and Administrators - Topic 5548

Actions by and against personal representations - Costs - Where payable out of estate - A testator died in 1966 - Twenty years later the executors had still not paid out specific bequests as directed by the testator - The beneficiaries obtained a favourable determination of their entitlement to their bequests - Both the executors and the beneficiaries sought solicitor and client costs under ss. 127 and 129(1) of the Probate Act - The Nova Scotia Probate Court awarded both solicitor and client costs out of the estate - The court stated that "it has been a general practice to allow executors, even in cases where the courts have decided against them, their costs to be paid by the estate" - See paragraphs 84 to 91.

Executors and Administrators - Topic 7226

Compensation - Loss of - Breach of duty - [See Executors and Administrators - Topic 2001 above].

Interest - Topic 3006

Statutory interest - Interest Act - Recovery of trust property - Specific bequests had still not been paid by the executors 20 years after the testator's death - The Nova Scotia Probate Court restricted the beneficiaries to 5% interest as provided under the federal Interest Act - The court stated that interest ran from the date one year after entitlement to the bequest - See paragraphs 49 to 75.

Limitation of Actions - Topic 6010

Trusts - Recovery of trust property - A testator's will provided for specific bequests - Twenty years after his 1966 death the specific bequests had still not been made - The executors claimed s. 26(1) of the Limitation of Actions Act precluded recovery of the bequests - The Nova Scotia Probate Court held that s. 39(1) of the Judicative Act governed - Section 39(1) protected a cestui que trust against a trustee who failed to make required payments within the normal limitation period - The court stated that the Limitation of Actions Act did not apply to the duty of executors to pay specific bequests in a will - See paragraphs 30 to 36.

Cases Noticed:

Ames v. Scherbaniuk Estate (1988), 90 A.R. 22, dist. [para. 39].

Re O'Reilly (No. 2) (1980), 111 D.L.R.(3d) 238, dist. [para. 39].

Re Lynch's Estate (1978), 25 N.S.R.(2d) 13; 36 A.P.R. 13, refd to. [para. 51].

Re Burgess Estate 4 N.S.R. 1965-69 361, refd to. [para. 88].

Statutes Noticed:

Interest Act, R.S.C. 1970, c. I-18, sect. 3 [para. 54].

Judicature Act, S.N.S. 1972, c. 2, sect. 38(9) [para. 53]; sect. 39(1) [para. 32].

Limitation of Actions Act, R.S.N.S. 1967, c. 168, sect. 26(1) [para. 31].

Probate Act, R.S.N.S. 1967, c. 238, sect. 42 [para. 22]; sect. 73 [para. 3]; sect. 74 [para. 77]; sect. 127, sect. 129(1) [para. 85]; sect. 151(2) [para. 3].

Authors and Works Noticed:

Feeney, Canadian Law of Wills (3rd Ed.), p. 233 [para. 59].

Greville, Harold, Modern Equity, p. 306 [para. 46].

Counsel:

William B. MacDonald, for Yvonne Landry and William Landry;

James MacIntosh, for Carroll MacIntyre;

Duncan Chisholm, for Jack MacIntyre.

This case was heard before MacDonnell, J., of the Nova Scotia Probate Court, who delivered the following judgment on June 15, 1989.