McKenna Estate, Re, (1994) 134 N.S.R.(2d) 218 (ProbCt)

• Judge: Stewart, J.
• Court: Probate Court of Nova Scotia (Canada)
• Case Date: August 05, 1994
• Jurisdiction: Nova Scotia
• Citations: (1994), 134 N.S.R.(2d) 218 (ProbCt)

McKenna Estate, Re (1994), 134 N.S.R.(2d) 218 (ProbCt);

  383 A.P.R. 218

MLB headnote and full text

In The Estate Of William Irving McKenna, late of Masons' Beach, in the County of Lunenburg, deceased

(No. 11,076)

Indexed As: McKenna Estate, Re

Nova Scotia Probate Court

Stewart, J.

August 5, 1994.

Summary:

McKenna, a widower, left his estate equally to his three children. The court appointed his only daughter administratrix with will annexed of the estate. The sons requested the daughter to show cause why she failed to include certain assets in the estate.

The Nova Scotia Probate Court held that: assets held jointly by the daughter and deceased were held in trust by her for the estate; an outstanding loan from the father to the daughter and her husband had not been repaid; a lawn mower, rototiller and china cabinet were gifts to the daughter.

Banks and Banking - Topic 2721

Bank accounts - Joint accounts - General - A widowed father left his estate equally to his three children - His daughter was appointed administratrix with will annexed - Her two brothers requested her to show cause why she failed to include, inter alia, a $40,000 bank account in the estate - She claimed ownership through survivorship - The Nova Scotia Probate Court held that she held the money in trust for the estate - The court noted that it was questionable whether the daughter was even a valid signatory on the 1984 joint account deposit agreement - When she signed on in 1990, her mother, who was a signatory to the existing agreement, was suffering from Alzheimer's - The mother was not a party to and did not consent to the daughter signing on.

Banks and Banking - Topic 2728

Bank accounts - Joint accounts - Pre­sumption of joint tenancy - A father left his estate equally to his three children - His daughter was appointed administratrix with will annexed - Her two brothers requested her to show cause why she failed to include, inter alia, a $40,000 bank account in the estate - She claimed own­ership through survivorship - The Nova Scotia Probate Court held that she held the money in trust for the estate - The joint deposit agreement was not evidence in and of itself of the deceased's intention - The bank documents had no bearing on the relationship between the joint tenants but only their relationship to the bank - See paragraph 50.

Gifts - Topic 551

Gifts inter vivos - Presumption of gift - Advancement - Evidence of - A father left his estate equally to his three children - His daughter was appointed administra-trix with will annexed - Her two brothers requested her to show cause why she failed to include, inter alia, a bank account and two G.I.C.s in the estate - She claimed ownership through survivorship because the property was jointly held - The Nova Scotia Pro­bate Court discussed the pre­sumption of ad­vancement and the require­ment of corroborative evidence where a party claims a beneficial interest through a right of survivorship in an asset not included in the estate's inventory (s. 45, Evidence Act (N.S.)) - See para­graphs 8 to 32.

Gifts - Topic 724

Gifts inter vivos - Transfers in joint ten­ancy - Transfers to joint bank accounts - A father left his estate to his three children - His daughter was appointed administra-trix with will annexed - Her two brothers requested her to show cause why she failed to include, inter alia, two G.I.C.s worth $60,000 each and a $40,000 bank account, in the estate - She claimed own­ership through survivorship - The Nova Scotia Probate Court held that she held the assets in trust for the estate - The deceased had no intention that his daughter acquire a beneficial interest in the monies other than through his will.

Gifts - Topic 727

Gifts inter vivos - Transfers in joint ten­ancy - Effect of - [See Gifts - Topic 724 ].

Cases Noticed:

Levy v. Levy Estate (1981), 50 N.S.R.(2d) 14; 114 A.P.R. 14 (T.D.), refd to. [para. 8].

Fenton Estate, Re (1977), 26 N.S.R.(2d) 662; 40 A.P.R. 662 (T.D.), refd to. [paras. 9, 12].

Mailman Estate, Re, [1941] S.C.R. 368, refd to. [paras. 10, 11].

Niles v. Lake, [1947] S.C.R. 291; [1947] 2 D.L.R. 248, refd to. [para. 16].

MacDonald Estate, Re (1924), 56 N.S.R. 451 (C.A.), refd to. [para. 21].

MacDonald v. MacDonald (1902), 33 S.C.R. 152, refd to. [para. 21].

Johnson v. Nova Scotia Trust Co. et al. (1973), 6 N.S.R.(2d) 88 (C.A.), refd to. [para. 22].

Statutes Noticed:

Evidence Act, R.S.N.S. 1989, c. 154, sect. 45 [paras. 19, 20, 49].

Counsel:

Eric F.G. Thomson and Peter Lohnes, for the petitioners, Wayne and David Mc­Kenna;

Walton W. Cook, Q.C., for the claimant, E. Lynn Surette;

C. Richard Coughlan, Q.C., for the Bank of Montreal;

David Brattson, for the Estate of William I. McKenna.

This case was heard at Bridgewater, Nova Scotia, by Stewart, J., of the Nova Scotia Probate Court, who delivered the following decision on August 5, 1994.