McCully v. Rogers Estate, (2013) 326 N.S.R.(2d) 5 (CA)

• Judge: Farrar, J.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: February 07, 2013
• Jurisdiction: Nova Scotia
• Citations: (2013), 326 N.S.R.(2d) 5 (CA);2013 NSCA 22

McCully v. Rogers Estate (2013), 326 N.S.R.(2d) 5 (CA);

    1033 A.P.R. 5

MLB headnote and full text

Temp. Cite: [2013] N.S.R.(2d) TBEd. FE.024

Joyce McCully (applicant/appellant) v. Roxanna Rutherford Rogers Estate and Peggy Rogers, Residual Beneficiary (respondents)

(CA 409533; 2013 NSCA 22)

Indexed As: McCully v. Rogers Estate

Nova Scotia Court of Appeal

Farrar, J.A.

February 12, 2013.

Summary:

On October 15, 2009, McCully applied to have the will of the late Rogers proved in solemn form. She alleged both incapacity of Rogers and undue influence on the part of Rogers' niece (the residual beneficiary) and the niece's husband. On the first day of the hearing on January 16, 2012, by consent order, the parties agreed to dismiss the application. The consent order provided that McCully's own costs were not to be paid out of the estate but it did not settle the issue of costs as between her, the estate and the niece. The estate and the niece sought solicitor and client costs paid by McCully. McCully sought to have the tariff applied.

The Nova Scotia Probate Court, in a decision reported at 326 N.S.R.(2d) 1; 1033 A.P.R. 1, ordered McCully to pay the estate a lump sum of $50,000 as against legal fees and disbursements, $5,000 for the additional costs of storage incurred by the estate and $2,000 towards the costs of the estate's administrator. She was also to pay $45,000 to the niece for her fees, inclusive of disbursements. The amounts were not solicitor client fees, but represented a substantial contribution to the legal fees and disbursements. McCully, who was self-represented, moved for leave to extend the time for filing a notice of appeal.

The Nova Scotia Court of Appeal, per Farrar, J.A., dismissed the motion.

Practice - Topic 9002

Appeals - Notice of appeal - Extension of time for filing and serving notice of appeal - McCully applied to have the will of the late Rogers proved in solemn form - She alleged both incapacity of Rogers and undue influence on the part of Rogers' niece (the residual beneficiary) and the niece's husband - On the first day of the hearing, by consent order, the parties agreed to dismiss the application - The estate and the niece sought solicitor and client costs - The Probate Court ordered McCully to pay lump sum costs representing a substantial contribution to the legal fees and disbursements - The order was dated October 23, 2012 - The appeal period expired on November 7, 2012 - McCully, who was self-represented, attempted to file a notice of appeal on November 26, 2012 - She moved for an extension of time to appeal - The Nova Scotia Court of Appeal, per Farrar, J.A., assumed that McCully had a good faith intention to exercise her right of appeal, that the delay was not so inordinate as to cause prejudice to the respondents and that there were valid reasons for the delay - However, the court denied an extension because McCully failed to show that there was a strong case for error at trial and real grounds of appeal justifying appellate interference - Bald assertions without any support did not give rise to a valid ground of appeal - Some evidence had to be led to substantiate the allegations.

Cases Noticed:

Farrell v. Casavant (2010), 294 N.S.R.(2d) 292; 933 A.P.R. 292; 2010 NSCA 71, refd to. [para. 15].

Jollymore Estate, Re (2001), 196 N.S.R.(2d) 177; 613 A.P.R. 177; 2001 NSCA 116, refd to. [para. 17].

Brooks v. Soto (2013), 324 N.S.R.(2d) 394; 1029 A.P.R. 394; 2013 NSCA 7, refd to. [para. 23].

Counsel:

Applicant/Appellant in person;

Nathan Sutherland, for the respondent, Estate;

Ann Levangie, for the respondent, Peggy Rogers.

This motion was heard in Chambers at Halifax, Nova Scotia, on February 7, 2013, by Farrar, J.A., of the Nova Scotia Court of Appeal, who delivered the following judgment on February 12, 2013.