Novak Estate (Re),

• Jurisdiction: Nova Scotia
• Judge: Warner, J.
• Neutral Citation: 2008 NSSC 283
• Citation: 2008 NSSC 283,(2008), 269 N.S.R.(2d) 84 (SC),[1991] NSJ No 362 (QL),106 NSR (2d) 180,288 APR 180,29 ACWS (3d) 262,288 A.P.R. 180,[1991] NS.J. No 362 (QL),(2008), 269 NSR(2d) 84 (SC),269 NSR(2d) 84,269 N.S.R.(2d) 84
• Date: 23 September 2008
• Court: Supreme Court of Nova Scotia (Canada)

Novak Estate, Re (2008), 269 N.S.R.(2d) 84 (SC);

    860 A.P.R. 84

MLB headnote and full text

Temp. Cite: [2008] N.S.R.(2d) TBEd. OC.009

In the Court of Probate for Nova Scotia In the Estate of John Gillis Novak, Deceased

Application pursuant to Section 64(3)(a) of the Probate Court Practice, Procedure and Forms Regulations

(296134; Probate Court File No.14729; 2008 NSSC 283)

Indexed As: Novak Estate, Re

Nova Scotia Supreme Court

Warner, J.

September 30, 2008.

Summary:

Novak died intestate. MacDonald claimed payment of a promissory note in the amount of $20,000, from the estate. He claimed that he lent $18,000 to the deceased on February 25, 2005, for the purpose of building a garage on the claimant's land (registered in the name of his daughter) and that the deceased had agreed to repay him $20,000 on or before August 25, 2005. The estate challenged the claim. The Registrar, on passing the accounts, held a reserve of $20,000 pending adjudication. MacDonald applied for payment of the claim.

The Nova Scotia Supreme Court denied the claim. MacDonald had not established, on a balance of probabilities, that the loan was not repaid before the deceased died.

Evidence - Topic 5202

Witnesses - Corroboration - General principles - When required - [See Executors and Administrators - Topic 5700 ].

Evidence - Topic 5205

Witnesses - Corroboration - General principles - Circumstantial evidence as corroboration - [See Executors and Administrators - Topic 5700 ].

Executors and Administrators - Topic 5700

Actions by and against representatives - Evidence - Claim by or against estate - Corroboration requirement - Novak died intestate - MacDonald claimed payment of a promissory note in the amount of $20,000, from the estate - The estate challenged the claim - The Registrar, on passing the accounts, held a reserve of $20,000 pending adjudication - MacDonald applied for payment of the claim - What was not in any written format, or supported by any documentary evidence, was whether the debt was outstanding as of the deceased's death - There was no record of a cheque payable to the deceased or of any bank withdrawal at the time of the loan - In this regard, the evidence of MacDonald and his associate was crucial - The Nova Scotia Supreme Court denied the claim - MacDonald had not established, on a balance of probabilities, that the loan was not repaid before the deceased died - The testimony of MacDonald was not corroborated by some material evidence, as required by s. 45 of the Evidence Act - Neither the totality of the circumstances nor the evidence of MacDonald's associate corroborated the claim - The circumstantial evidence and fair inferences of fact suggested that the debt was paid before the deceased's death.

Cases Noticed:

O'Connell Estate, Re (1980), 44 N.S.R.(2d) 181; 83 A.P.R. 181; 1980 CarswellNS 243 (Prob. Ct.), affd. (1981), 45 N.S.R.(2d) 336; 86 A.P.R. 336; 1981 CarswellNS 90 (C.A.), refd to. [para. 34].

Faryna v. Chorny, 1951 CarswellBC 133 (C.A.), refd to. [para. 36].

R. v. J.M. (2002), 207 N.S.R.(2d) 262; 649 A.P.R. 262; 2002 NSCA 99, refd to. [para. 36].

R. v. Mah - see R. v. J.M.

R. v. Howe (2005), 192 C.C.C.(3d) 480 (Ont. C.A.), refd to. [para. 36].

R. v. J.H. - see R. v. Howe.

R. v. D.R., H.R. and D.W., [1996] 2 S.C.R. 291; 197 N.R. 321; 144 Sask.R. 81; 124 W.A.C. 81; 107 C.C.C.(3d) 289, refd to. [para. 37].

Statutes Noticed:

Evidence Act, R.S.N.S. 1989, c. 154, sect. 45 [para. 31].

Authors and Works Noticed:

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), paras. 17.46 to 17.54 [para. 33].

Counsel:

M. Ann Levangie, for the claimant;

Ronald R. Chisholm, Proctor for the Estate.

This application was heard on September 23, 2008, at Truro, Nova Scotia, by Warner, J., of the Nova Scotia Supreme Court, who delivered the following decision on September 30, 2008.