Power Estate, Re, (2005) 261 N.S.R.(2d) 273 (ProbCt)

• Court: Probate Court of Nova Scotia (Canada)
• Case Date: September 01, 2005
• Jurisdiction: Nova Scotia
• Citations: (2005), 261 N.S.R.(2d) 273 (ProbCt)

Power Estate, Re (2005), 261 N.S.R.(2d) 273 (ProbCt);

    835 A.P.R. 273

MLB headnote and full text

Temp. Cite: [2008] N.S.R.(2d) TBEd. JA.063

The Estate of Glenda Cecelia Power, late of Halifax, in the Halifax Regional Municipality and Province of Nova Scotia

(53613; 2005 NSPB 1)

Indexed As: Power Estate, Re

Nova Scotia Probate Court

Atton, Registrar

September 1, 2005.

Summary:

A deceased moved in with her son and daughter-in-law. She sold her home and contributed to the purchase of a new home. She paid monthly rent of $600, which included six suppers per week, taking her to her doctors' appointments, picking up her prescriptions and doing her banking. She contributed $50 per month for cable for the entire household and $300 a year towards the wood supply for the wood furnace. The deceased also wrote a cheque to her son in 1998 for $2,000 to assist him in having a new well installed. The relationship became strained and in 2001, the deceased moved out into an apartment until her death. The deceased's will named her daughter and son-in-law as executors and trustees of her estate. Except for $1 left to her son, the estate was given to the daughter. The son made a claim against the estate for $69,732.38 plus costs.

A Registrar of the Nova Scotia Probate Court dismissed the claim and awarded costs against the son on a solicitor and client basis.

Editor's note: for an appeal against the costs award, see 254 N.S.R.(2d) 176; 810 A.P.R. 176.

Contracts - Topic 1441

Formation of contract - Agreements that are not contracts - General - A deceased moved in with her son and daughter-in-law - She sold her home and contributed to the purchase of a new home - She paid monthly rent of $600, which included six suppers per week, taking her to her doctors' appointments, picking up her prescriptions and doing her banking - She contributed $50 per month for cable for the entire household and $300 a year towards the wood supply for the wood furnace - The deceased also wrote a cheque to her son in 1998 for $2,000 to assist him in having a new well installed - The relationship became strained and in 2001, the deceased moved out into an apartment until her death - The deceased's will named her daughter and son-in-law as executors and trustees of her estate - Except for $1 left to her son, the estate was given to the daughter - The son made a claim against the estate for $69,732.38 based on a contract with the deceased - A Registrar of the Nova Scotia Probate Court dismissed the claim - The arrangement between the parties was not a contract - See paragraphs 20 to 27.

Practice - Topic 7328

Costs - Costs in probate proceedings - Solicitor and client costs - A deceased's will named her daughter and son-in-law as executors and trustees of her estate - Except for $1 left to her son, the estate was given to the daughter - The son made a claim against the estate for $69,732.38 plus costs - A Registrar of the Nova Scotia Probate Court dismissed the claim and awarded costs against the son on a solicitor and client basis - The claim was "reprehensible, scandalous or outrageous" - The son lied under oath to advance a claim he knew to be fraudulent - The filing of the claim was mean spirited - Further, the son had allegedly stated that he "would tie it up in court until the estate went bankrupt" - In the rare and exceptional circumstances of this claim, an award of costs on a solicitor and client basis was appropriate - See paragraphs 42 to 47.

Practice - Topic 7454

Costs - Solicitors and client costs - Entitlement to - Improper, irresponsible or unconscionable conduct - [See Practice - Topic 7328 ].

Practice - Topic 7466

Costs - Solicitors and client costs - Entitlement to - Probate actions - [See Practice - Topic 7328 ].

Restitution - Topic 62

Unjust enrichment - General - What constitutes - A deceased moved in with her son and daughter-in-law - She sold her home and contributed to the purchase of a new home - She paid monthly rent of $600, which included six suppers per week, taking her to her doctors' appointments, picking up her prescriptions and doing her banking - She contributed $50 per month for cable for the entire household and $300 a year towards the wood supply for the wood furnace - The deceased also wrote a cheque to her son in 1998 for $2,000 to assist him in having a new well installed - The relationship became strained and in 2001, the deceased moved out into an apartment until her death - The deceased's will named her daughter and son-in-law as executors and trustees of her estate - Except for $1 left to her son, the estate was given to the daughter - The son made a claim against the estate for $69,732.38 based on unjust enrichment - A Registrar of the Nova Scotia Probate Court dismissed the claim - The son was not deprived - The deceased received an enrichment by living with her son, and in paying rent and making other monetary contributions, she received certain services - The son was also enriched by receiving a monthly rent and a gift of $50,000 from his mother and financial support towards the buying of wood and the gift of $2,000 towards the well - If the court were to conclude that there was an equitable obligation on the deceased to pay the son for his services, she, in fact, did pay him - See paragraphs 37 to 41.

Restitution - Topic 782

Benefit acquired from the plaintiff - Recovery based on quantum meruit - Conditions precedent - A deceased moved in with her son and daughter-in-law - She sold her home and contributed to the purchase of a new home - She paid monthly rent of $600, which included six suppers per week, taking her to her doctors' appointments, picking up her prescriptions and doing her banking - She contributed $50 per month for cable for the entire household and $300 a year towards the wood supply for the wood furnace - The deceased also wrote a cheque to her son in 1998 for $2,000 to assist him in having a new well installed - The relationship became strained and in 2001, the deceased moved out into an apartment until her death - The deceased's will named her daughter and son-in-law as executors and trustees of her estate - Except for $1 left to her son, the estate was given to the daughter - The son made a claim against the estate for $69,732.38 based on quantum meruit - A Registrar of the Nova Scotia Probate Court dismissed the claim - There existed no contract, either express or implied, between the deceased and the son that compensation for services rendered by the son and daughter-in-law was to be paid for by the deceased by a legacy - See paragraphs 29 to 36.

Cases Noticed:

Taylor Estate v. Stiles (2004), 224 N.S.R.(2d) 139; 708 A.P.R. 139 (S.C.), refd to. [para. 29].

Currie v. Shields Estate (1993), 112 Nfld. & P.E.I.R. 291; 350 A.P.R. 291 (P.E.I.T.D.), refd to. [para. 29].

Walker v. Boughner et al. (1889), 18 O.R. 448 (C.A.), refd to. [para. 30].

Bollivar v. Hirtle Estate (1990), 97 N.S.R.(2d) 247; 258 A.P.R. 247 (C.A.), refd to. [para. 37].

Balders Estate v. Registrar of Probate for Halifax (County) (1999), 181 N.S.R.(2d) 201; 560 A.P.R. 201 (S.C.), refd to. [para. 44].

Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161; 108 D.L.R.(4th) 193, refd to. [para. 45].

Counsel:

Scott Pearson Power, self-represented litigant, claimant;

B. William Piercey, Q.C., for the estate.

This action was heard on July 27-29, 2005, at Halifax, N.S., by Atton, Registrar, of the Nova Scotia Probate Court, who delivered the following judgment on September 1, 2005.