MacKay v. MacKay Estate, (2013) 329 N.S.R.(2d) 45 (ProbCt)

• Judge: Coughlan, J.
• Court: Probate Court of Nova Scotia (Canada)
• Case Date: January 03, 2013
• Jurisdiction: Nova Scotia
• Citations: (2013), 329 N.S.R.(2d) 45 (ProbCt);2013 NSSC 116

MacKay v. MacKay Estate (2013), 329 N.S.R.(2d) 45 (ProbCt);

    1042 A.P.R. 45

MLB headnote and full text

Temp. Cite: [2013] N.S.R.(2d) TBEd. AP.032

Richard W. MacKay (appellant) v. Estate of Marion Phyllis MacKay, deceased as represented by personal representative, Mary Ann Eisner (respondent)

(Probate File Bwt. 14515; 2013 NSSC 116)

Indexed As: MacKay v. MacKay Estate

Nova Scotia Probate Court

Coughlan, J.

April 2, 2013.

Summary:

A nephew claimed against his aunt's estate for the value of services provided to her. He claimed he was promised he would receive her real property upon her death in exchange for his assistance to her. No provisions were made for the nephew in the aunt's will. The Registrar dismissed the claim. The nephew appealed.

The Nova Scotia Probate Court dismissed the appeal.

Restitution - Topic 62

Unjust enrichment - General - What constitutes - A nephew claimed against his aunt's estate for the value of services provided to her - He claimed he was promised he would receive her real property upon her death in exchange for his assistance to her - No provisions were made for the nephew in the aunt's will - He based his claim on unjust enrichment and quantum meruit - The Registrar dismissed the claim - The nephew appealed - The Nova Scotia Probate Court dismissed the appeal - While the nephew exaggerated the work he did for his aunt, he did do chores around the house - The aunt offered to pay him, but he refused - The court did not accept that the aunt told the nephew he would receive her real property after she died in return for providing services to her - Nevertheless, there would be a corresponding deprivation to the nephew of the time and effort to provide the work and services to the aunt - There was an established juristic reason for the nephew to provide assistance to his aunt, i.e., donative intent - There were also no public policy reasons to support a claim of unjust enrichment - Finally, with respect to the nephew's claim based on quantum meruit, it had not been established that the aunt understood that the nephew expected remuneration for the services he provided to her - The evidentiary basis for a claim for quantum meruit had not been established.

Restitution - Topic 784

Benefit acquired from the plaintiff - Recovery based on quantum meruit - Work performed or goods provided - [See Restitution - Topic 62 ].

Cases Noticed:

Thompson v. Coulter (1903), 34 S.C.R. 261, refd to. [para. 38].

Garland v. Consumers' Gas Co., [2004] 1 S.C.R. 629; 319 N.R. 38; 186 O.A.C. 128; 2004 SCC 25, refd to. [para. 51].

Burgess, Re, [1965-69] 4 N.S.R. 361 (S.C.), refd to. [para. 53].

Counsel:

Michael K. Power, Q.C., for the appellant;

Franceen Romney, for the respondent.

This appeal was heard at Bridgewater, N.S., on January 3, 2013, by Coughlan, J., of the Nova Scotia Probate Court, who delivered the following decision on April 2, 2013.