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

CourtNova Scotia Probate Court
Case DateSeptember 01, 2005
JurisdictionNova 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.

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