Prevost Estate v. Prevost Estate, 2013 NSCA 20

• Judge: Oland, Beveridge and Bryson, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: February 12, 2013
• Jurisdiction: Nova Scotia
• Citations: 2013 NSCA 20;(2013), 327 N.S.R.(2d) 152 (CA)

Prevost Estate v. Prevost Estate (2013), 327 N.S.R.(2d) 152 (CA);

    1036 A.P.R. 152

MLB headnote and full text

Temp. Cite: [2013] N.S.R.(2d) TBEd. FE.021

Tyrone Bradley Prevost, executor of the Estate of Claude Delbert Prevost (appellant) v. Joan Prevost, administrator of the Estate of Theodore Prevost, Sr., and Joslyn Schultz and Gregory Prevost, co-executors of the Estate of Eric Prevost (respondents)

(CA 390628; 2013 NSCA 20)

Indexed As: Prevost Estate v. Prevost Estate

Nova Scotia Court of Appeal

Oland, Beveridge and Bryson, JJ.A.

February 12, 2013.

Summary:

The testator, Claude Prevost, died in 1996. Clause 4 of his will stated, "I give all of my estate, both real and personal to my surviving sisters and brothers, except Ervin Graham Prevost to be divided equally amongst those sisters and brothers alive at the time of division." Clause 5 directed that the shares of his estate of any sibling who predeceased him were to be divided among the sibling's children. Claude named two of his brothers, Eric and Tyrone, executors. Claude's brother, Theodore, died in 1997. Eric died in 2005. In 2006, a grant of probate was issued to Tyrone. Tyrone took the position that, because Eric and Theodore had died prior to the distribution of the estate, their children could not be considered beneficiaries. Eric's and Theodore's children applied to the court for a determination as to how the estate was to be divided.

The Nova Scotia Supreme Court, in a judgment reported (2012), 317 N.S.R.(2d) 154; 1003 A.P.R. 154, held that the beneficiaries of the estate included Eric's and Theodore's children. Tyrone appealed.

The Nova Scotia Court of Appeal dismissed the appeal. The court awarded the successful respondents solicitor-client costs out of the estate. The unsuccessful appellant (Tyrone) was ordered to bear his own costs.

Executors and Administrators - Topic 5548

Actions by and against representatives - Costs - Where payable out of estate - [See Practice - Topic 7455 ].

Practice - Topic 121

Persons who can sue and be sued - Estates - General - A legal dispute by parties over the interpretation of a will named two estates as the parties - The Nova Scotia Court of Appeal stated that "it is useful to recall that estates are not legal persons and cannot sue or be sued. ... Civil Procedure Rule 36.02 requires that representative parties such as executors must be described by name, followed by the title." - The court amended the style of cause to reflect who should have been the proper parties - See paragraphs 19 to 21.

Practice - Topic 7455

Costs - Solicitor and client costs - Entitlement to - Estates and estate matters - The executor of Claude Prevost's estate interpreted specific wording in the will as disinheriting certain children - The trial judge ruled against the executor - The executor appealed - The Nova Scotia Court of Appeal dismissed the appeal - The court noted that parties in an estate dispute were often awarded costs out of the estate - The court stated that "in this case, the executor obtained the court's interpretation of Clauses 4 and 5 of the Will. Not content with that outcome, the executor appealed essentially repeating the narrow linguistic arguments unsuccessfully made before the Chambers judge. The respondents have been put to needless expense. I would award them solicitor-client costs against the estate. I would not award any costs to the executor out of the estate of Claude Prevost. He should bear his own costs." - See paragraphs 17 to 18.

Practice - Topic 7456

Costs - Solicitor and client costs - Entitlement to - Executors and administrators - [See Practice - Topic 7455 ].

Wills - Topic 5000

Construction - General - General principles - Ascertainment of intention of testator - The testator, Claude Prevost, died in 1996 - Clause 4 of his will stated, "I give all of my estate, both real and personal to my surviving sisters and brothers, except Ervin Graham Prevost to be divided equally amongst those sisters and brothers alive at the time of division." - Clause 5 directed that if a sibling pre-deceased him, that sibling's share was to be divided among the sibling's children - Two siblings survived Claude, but died before a grant of probate was issued in 2006 - The executor (Claude's brother Tyrone) took the position that, because the two siblings died prior to the distribution of the estate, their children could not be considered beneficiaries - Those children applied to the court for a determination as to how the estate was to be divided - The trial judge held that the beneficiaries of the estate included the children of the deceased siblings - Clauses 4 and 5 demonstrated Claude's intention, which was to benefit all of his surviving siblings, except one, on his death - The Nova Scotia Court of Appeal affirmed the decision, stating that "it would make no sense that children of siblings dying before Claude Prevost would inherit, but children of siblings who die after Claude Prevost would not. ... it is unnecessary to consider presumptions, rules of construction, surrounding circumstances or other evidence to supply a perceived deficiency in the language of the will. The will can be intelligibly interpreted on its face" - See paragraphs 7 to 16.

Cases Noticed:

Mitchell Estate v. Mitchell Estate (2004), 228 N.S.R.(2d) 295; 723 A.P.R. 295; 2004 NSCA 149, refd to. [para. 7].

Alberta Giftwares Ltd. v. R., [1974] S.C.R. 584, refd to. [para. 8].

MacDonald v. McCormick (2009), 274 N.S.R.(2d) 258; 874 A.P.R. 258; 2009 NSCA 12, refd to. [para. 9].

Fleck, Re (1924), 55 O.L.R. 441 (C.A.), refd to. [para. 17].

Stuart, Johnson v. Williams, [1990] All E.R. 80 (C.A.), refd to. [para. 17].

McDougald Estate, Re (2005), 199 O.A.C. 203 (C.A.), refd to. [para. 17].

Patrick et al. v. Telus Communications Inc. (2008), 256 B.C.A.C. 277; 431 W.A.C. 277; 2008 BCCA 246, refd to. [para. 17].

St. Onge Estate v. Breau (2009), 345 N.B.R.(2d) 101; 889 A.P.R. 101; 2009 NBCA 36, refd to. [para. 17].

Warsh Estate, Re (1996), 13 O.T.C. 161 (Gen. Div.), refd to. [para. 19].

Foo et al. v. Yakimetz et al., [2002] O.T.C. Uned. 833 (Sup. Ct.), refd to. [para. 19].

Authors and Works Noticed:

Feeney, Thomas G., The Canadian Law of Wills (4th Ed. 2000) (Looseleaf), para. 10.1 [para. 8].

MacDonnell, Sheard and Hull, Probate Practice (4th Ed. 1996), pp. 372 to 381 [para. 17].

Counsel:

Peter W. Kidston, for the appellant;

Matthew J.W. Gibbon, for the respondents.

This appeal was heard on January 30, 2013, at Halifax, N.S., before Oland, Beveridge and Bryson, JJ.A., of the Nova Scotia Court of Appeal.

On February 12, 2013, Bryson, J.A., delivered the following judgment for the Court of Appeal.