Pottie Estate, Re, 2014 NSSC 389

• Judge: Gogan, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: July 28, 2014
• Jurisdiction: Nova Scotia
• Citations: 2014 NSSC 389;(2014), 352 N.S.R.(2d) 233 (SC)

Pottie Estate, Re (2014), 352 N.S.R.(2d) 233 (SC);

    1112 A.P.R. 233

MLB headnote and full text

Temp. Cite: [2014] N.S.R.(2d) TBEd. OC.041

The Estate of Allister Michael Pottie

Sharon Willisko (applicant) v. Valerie Murphy (respondent)

(PtH. No. 420643; 2014 NSSC 389)

Indexed As: Pottie Estate, Re

Nova Scotia Supreme Court

Gogan, J.

October 27, 2014.

Summary:

Pottie died in August 2010. He appointed his daughter, Valerie, as his personal representative. In the event that Valerie was unable or unwilling to act, Pottie appointed his son, Wayne, to fulfill this role. In October 2013, Pottie's daughter, Sharon, applied to have Valerie removed as the personal representative.

The Nova Scotia Supreme Court allowed the application.

Evidence - Topic 1626

Hearsay rule - Statements of deceased persons - General principles - Pottie died in August 2010 - He appointed his daughter, Valerie, as his personal representative - In the event that Valerie was unable or unwilling to act, Pottie appointed his son, Wayne, to fulfill this role - In October 2013, Pottie's daughter, Sharon, applied to have Valerie removed as the personal representative - There existed a preliminary issue relating to the evidence offered by the parties - Both parties offered hearsay statements in their affidavit evidence and during cross-examination - For the most part, these hearsay statements were statements attributed to the deceased - The Nova Scotia Supreme Court found that much of this evidence was not relevant to the issues and was presumptively inadmissible - There were a number of statements proffered by Valerie which might have some relevance - These hearsay statements were statements as to the deceased's wishes on a number of topics - These statements were offered by Valerie to explain her handling of the Estate and why she should not be removed as personal representative - None of the hearsay statements were corroborated in any material way - Accordingly, these statements could not form the basis of any determination as to Pottie's wishes, to the extent that those wishes might be relevant - The statements were not admissible - See paragraphs 51 to 63.

Executors and Administrators - Topic 384

Appointment - Qualification and tenure - Removal and suspension - Conflict of interest - Pottie died in August 2010 - He appointed his daughter, Valerie, as his personal representative - In the event that Valerie was unable or unwilling to act, Pottie appointed his son, Wayne, to fulfill this role - In October 2013, Pottie's daughter, Sharon, applied to have Valerie removed as the personal representative - The Nova Scotia Supreme Court allowed the application - Valerie claimed that her handling of the Estate was in keeping with her father's wishes - Some of these wishes were contained in the will and some wishes were communicated to her verbally - She further testified that as long as she was the personal representative she would not apply for a Grant of Probate - She took the position that the balances in the former joint account were hers and she would only divide the balance of the bank accounts between those siblings "not involved in the legal battle" - She would "absolutely" decide who got the money - She acknowledged, in relation to those siblings "involved in the legal battle", that she "doesn't consider herself in a position to look out for their best interests. She doesn't feel that responsibility" - To date, Valerie had not opened the Estate or provided an inventory, at least in the manner required by the Probate Act - Further, there was a conflict of interest where she was the personal representative and one of the residual beneficiaries of the Estate - See paragraphs 46 to 75.

Executors and Administrators - Topic 385

Appointment - Qualification and tenure - Removal and suspension - Hostility between executor and beneficiaries - [See Executors and Administrators - Topic 384 ].

Executors and Administrators - Topic 387

Appointment - Qualification and tenure - Removal and suspension - Best interests of beneficiaries - [See Executors and Administrators - Topic 384] .

Cases Noticed:

Loughead Estate, Re (2013), 332 N.S.R.(2d) 276; 1052 A.P.R. 276; 2013 NSSC 236 (Prob. Ct.), refd to. [para. 36].

Winter Estate, Re (2002), 202 N.S.R.(2d) 5; 632 A.P.R. 5; 2002 NSCA 23, refd to. [para. 45].

Critchley v. Critchley (2006), 246 N.S.R.(2d) 76; 780 A.P.R. 76; 2006 NSSC 219, refd to. [para. 46].

Stadelmier v. Hoffman (1986), 25 E.T.R. 174 (Ont. Surr. Ct.), refd to. [para. 72].

Authors and Works Noticed:

Feeney's Canadian Law of Wills (4th Ed. 2000), pp. 8-7 [para. 43]; 8-10 [para. 45].

Halsbury's Laws of Canada, HWE-226, generally [para. 44].

Widdifield on Executors and Trustees (6th Ed. 2013), p. 15-12 [para. 36].

Counsel:

Michael Blades, for the applicant;

M. Ann Levangie, for the respondent.

This application was heard at Port Hawkesbury, N.S., on April 23 and July 28, 2014, by Gogan, J., of the Nova Scotia Supreme Court, who delivered the following decision on October 27, 2014.