Power Estate, Re, (2007) 254 N.S.R.(2d) 176 (ProbCt)

• Judge: Coughlan, J.
• Court: Probate Court of Nova Scotia (Canada)
• Case Date: December 19, 2006
• Jurisdiction: Nova Scotia
• Citations: (2007), 254 N.S.R.(2d) 176 (ProbCt);2007 NSSC 126

Power Estate, Re (2007), 254 N.S.R.(2d) 176 (ProbCt);

    810 A.P.R. 176

MLB headnote and full text

Temp. Cite: [2007] N.S.R.(2d) TBEd. MY.024

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

(SH 255577A; 2007 NSSC 126)

Indexed As: Power Estate, Re

Nova Scotia Probate Court

Coughlan, J.

April 30, 2007.

Summary:

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. The Registrar dismissed the claim and awarded costs against the son on a solicitor and client basis. The son appealed. The son abandoned the appeal, except for the costs award.

The Nova Scotia Probate Court dismissed the appeal.

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 - The Registrar dismissed the claim and awarded costs against the son on a solicitor and client basis - The Registrar found the claim was not just "reprehensible, scandalous or outrageous" but that the son lied under oath to advance a claim he knew to be fraudulent - Further, the son had allegedly stated that he "would tie it up in court until the estate went bankrupt" - The Nova Scotia Probate Court affirmed the costs award - In the rare and exceptional circumstances of this claim, the award of costs on a solicitor and client basis was appropriate.

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 ].

Cases Noticed:

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. 11].

Brown v. Metropolitan Authority et al. (1996), 150 N.S.R.(2d) 43; 436 A.P.R. 43 (C.A.), refd to. [para. 12].

MacDonnell v. M & M Developments Ltd. et al. (1997), 164 N.S.R.(2d) 81; 491 A.P.R. 81 (S.C.), refd to. [para. 13].

Counsel:

Richard A. Bureau, for the appellant, Scott Pearson Power;

B. William Piercey, Q.C., for the Estate of Glenda Cecelia Power.

This appeal was heard at Halifax, Nova Scotia, on December 19, 2006, and final written submissions were received on March 9 and 12, 2007, by Coughlan, J., of the Nova Scotia Probate Court, who delivered the following judgment on April 30, 2007.