Pottie Estate, Re, 2015 NSSC 45

• Judge: Gogan, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: November 15, 2014
• Jurisdiction: Nova Scotia
• Citations: 2015 NSSC 45;(2015), 355 N.S.R.(2d) 367 (SC)

Pottie Estate, Re (2015), 355 N.S.R.(2d) 367 (SC);

    1123 A.P.R. 367

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. FE.027

The Estate of Allister Michael Pottie

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

(PtH. No. 420643; 2015 NSSC 45)

Indexed As: Pottie Estate, Re

Nova Scotia Supreme Court

Gogan, J.

February 12, 2015.

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, in a decision reported at (2014), 352 N.S.R.(2d) 233; 1112 A.P.R. 233, allowed the application. The parties made submissions on costs.

The Nova Scotia Supreme Court ordered Valerie to pay costs of $17,250 to Sharon. The costs were payable by Valerie personally.

Executors and Administrators - Topic 5544

Actions by and against representatives - Costs - Personal liability of representative - 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 application judge allowed the application - Sharon sought solicitor and client costs paid by Valerie personally - The Nova Scotia Supreme Court ordered Valerie to pay costs of $17,250 to Sharon - The costs were payable by Valerie personally - Valerie failed to act in a manner consistent with her duties and responsibilities as a personal representative - In some aspects her conduct was flagrant and in other aspects simply misguided - While the court had the authority to consider an award of solicitor and client costs, it was inappropriate in these circumstances - An award of lump sum costs was appropriate - Valerie's inaction forced Sharon to seek redress in the court - This was entirely unnecessary and a needless expense - Moreover, the Estate was a modest one and it would be a considerable and unfair burden to see the Estate pay costs in the circumstances - The total lump sum was comprised of costs under Tariff A in the amount of $12,250 plus an additional lump sum of $5,000 - The addition of the lump sum, in combination with a personal cost award, was intended to effect a rebuke of Valerie's conduct which was generally intransigent and at times misguided but at all times inconsistent with her responsibilities as a personal representative.

Practice - Topic 7117

Costs - Party and party costs - Special orders - Lump sum in lieu of taxed costs - [See Executors and Administrators - Topic 5544 ].

Practice - Topic 7455

Costs - Solicitor and client costs - Entitlement to - Estates and estate matters - [See Executors and Administrators - Topic 5544 ].

Cases Noticed:

McDougald Estate, Re (2005), 199 O.A.C. 203 (C.A.), refd to. [para. 16].

Prevost Estate v. Prevost Estate (2013), 327 N.S.R.(2d) 152; 1036 A.P.R. 152; 2013 NSCA 20, refd to. [para. 17].

McCully v. Rogers Estate (2012), 326 N.S.R.(2d) 1; 1033 A.P.R. 1; 2012 NSSC 435 (Prob. Ct.), refd to. [para. 24].

Winters Estate, Re (1999), 180 N.S.R.(2d) 388; 557 A.P.R. 388 (Prob. Ct.), refd to. [para. 32].

Jollimore Estate, Re (2012), 312 N.S.R.(2d) 234; 987 A.P.R. 234; 2012 NSSC 8, refd to. [para. 33].

Authors and Works Noticed:

Hull, Ian M., Costs in Estate Litigation (1998), 18 E.T.R.(2d) 218, generally [para. 33].

Counsel:

Michael Blades, for the applicant;

Valerie Murphy, respondent in person.

This case was heard in writing by written submissions received on November 15, 2014, by Gogan, J., of the Nova Scotia Supreme Court, who delivered the following decision on costs on February 12, 2015.