Peach Estate, Re, (2011) 303 N.S.R.(2d) 381 (ProbCt)

Judge:Murray, J.
Court:Nova Scotia Probate Court
Case Date:October 05, 2010
Jurisdiction:Nova Scotia
Citations:(2011), 303 N.S.R.(2d) 381 (ProbCt);2011 NSSC 230
 
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Peach Estate, Re (2011), 303 N.S.R.(2d) 381 (ProbCt);

    957 A.P.R. 381

MLB headnote and full text

Temp. Cite: [2011] N.S.R.(2d) TBEd. JN.044

In The Estate of Thomas Allan Peach (deceased)

(SYD 333360; Probate No. 21051; 2011 NSSC 230)

Indexed As: Peach Estate, Re

Nova Scotia Probate Court

Murray, J.

June 10, 2011.

Summary:

A clause in a will drafted in 1980 provided that the balance of the testator's estate was bequeathed to the Glace Bay General Hospital (GBGH). In the event that a new hospital was constructed, the capital was to be used toward the establishment of a kidney care unit dedicated to his parents' memory. In the event that this hospital ceased to exist, the balance of the estate was to be donated to the Salvation Army. In 1986, the GBGH was replaced by a new building in a new location in Glace Bay. The testator died in 2009. By then, the GBGH had been dissolved as a separate legal entity and was owned and operated by the Cape Breton District Health Authority (DHA). The hospital known as GBGH continued to function. At issue was who was entitled to the gift: the DHA, the GBGH Charitable Foundation or the Salvation Army.

The Nova Scotia Probate Court, in a decision reported at 301 N.S.R.(2d) 226; 953 A.P.R. 226, held that the testator intended to benefit the GBGH in its present form. As far as the will was concerned, the GBGH did not cease to exist. The DHA was the rightful beneficiary. The parties made submissions respecting costs.

The Nova Scotia Probate Court awarded costs on a solicitor client basis to all the parties.

Executors and Administrators - Topic 5548

Actions by and against representatives - Costs - Where payable out of estate - A clause in a will drafted in 1980 provided that the balance of the testator's estate was bequeathed to the Glace Bay General Hospital (GBGH) - In the event that a new hospital was constructed, the capital was to be used toward the establishment of a kidney care unit dedicated to his parents' memory - In the event that this hospital ceased to exist, the balance of the estate was to be donated to the Salvation Army - In 1986, the GBGH was replaced by a new building in a new location in Glace Bay - The testator died in 2009 - By then, the GBGH had been dissolved as a separate legal entity and was owned and operated by the Cape Breton District Health Authority (DHA) - The hospital known as GBGH continued to function - The trial judge held that the testator intended to benefit the GBGH in its present form - The DHA was the rightful beneficiary - The Nova Scotia Probate Court held that there were exceptional circumstances warranting an award of costs on a solicitor client basis to all the parties - The wording of the will clearly contributed to the necessity of the application involving all three parties - All were potential recipients - The parties, including DHA, agreed with the award - The award would do justice as between the parties.

Practice - Topic 7328

Costs - Costs in probate proceedings - Solicitor and client costs - [See Executors and Administrators - Topic 5548 ].

Practice - Topic 7466

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Probate actions - [See Executors and Administrators - Topic 5548 ].

Cases Noticed:

Fort Sackville Foundation v. Darby Estate (2010), 287 N.S.R.(2d) 164; 912 A.P.R. 164; 2010 NSSC 45, refd to. [para. 2].

Counsel:

G. Wayne Beaton Q.C., and Paul Chaission, for the Estate;

Eric Durnford, Q.C., for the Glace Bay General Hospital Charitable Foundation;

Gary Corsano and Robert Risk, for the Cape Breton District Health Authority;

Kimberly A. McCurdy, for the Salvation Army in Canada.

This matter was heard in Sydney, Nova Scotia, on October 5, 2010, before Murray, J., of the Nova Scotia Probate Court, who delivered the following decision on costs on June 10, 2011.

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