Shellnutt Estate v. Shellnutt et al., 2015 NSSC 305

• Judge: Wood, J.
• Court: Probate Court of Nova Scotia (Canada)
• Case Date: September 29, 2015
• Jurisdiction: Nova Scotia
• Citations: 2015 NSSC 305;(2015), 366 N.S.R.(2d) 203 (ProbCt)

Shellnutt Estate v. Shellnutt (2015), 366 N.S.R.(2d) 203 (ProbCt);

    1154 A.P.R. 203

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. OC.050

Wayne Shellnutt Executor of the Estate of Ernest George Shellnutt (applicant) v. Wayne Shellnutt in his personal capacity, James Leslie Shellnutt, and Brenda Haight (Children of the testator living as of the date of his death) and Michael Shellnutt, Dr. Gregory Shellnutt, Jeffery Dixon, Krista Kelly, Jennifer Mason, Khristopher Shellnutt, Jonathan Shellnutt, Laura Shellnutt, Brian Garrison (Children of deceased children of the testator) (respondents)

(Hfx. No. 440084; 2015 NSSC 305)

Indexed As: Shellnutt Estate v. Shellnutt et al.

Nova Scotia Probate Court

Wood, J.

October 22, 2015.

Summary:

The executor of the deceased's estate applied for directions respecting the proper interpretation of a clause in the deceased's will, particularly whether the residue was to be distributed to the deceased's three surviving children or shared with the children of his four deceased children.

The Nova Scotia Probate Court held that the residue was to be distributed among the deceased's children who were alive at the date of his death.

Wills - Topic 6803

Construction - Persons entitled to take - Class gifts - What constitute - Clause 9 of Shellnutt's will stated that the residue of his estate was to be given "in equal shares to my children per capita" - The executor of Shellnutt's estate applied for directions respecting whether Clause 9 meant that the residue was to be distributed to Shellnutt's three surviving children or shared with the children of his four deceased children - The Nova Scotia Probate Court held that the residue was to be distributed among the three surviving children - Where a will referred to a group of beneficiaries by description (for example, "my children" or "my grandchildren") but not by name, this was considered to be a class gift and only those members of the class alive at the date of the testator's death were entitled to benefit - The use of the words "per capita" in Clause 9 was not an alternative to listing the grandchildren by name - If Shellnutt had listed his children by name, s. 31 of the Wills Act would apply and the children of the deceased children would be entitled to their parents' share, provided that a contrary intention was not indicated by the language of the will - Even if s. 31 had applied, the phrase "per capita"demonstrated a contrary intention.

Wills - Topic 6861

Construction - Persons entitled to take - Survivorship - Issue or children of legatee who predeceases testator - [See Wills - Topic 6803 ].

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. 6].

British Columbia (Official Administrator) v. Joseph, [1999] B.C.J. No. 2340 (S.C.), refd to. [para. 10].

Beckett Estate, Re, [1992] S.J. No. 521 (Q.B.), refd to. [para. 11].

Statutes Noticed:

Wills Act, R.S.N.S. 1989, c. 505, sect. 31 [para. 4].

Counsel:

David A. Grant, for the applicant;

Brian F. Bailey, for the respondent, James Shellnutt.

This application was heard in Halifax, N.S., on September 29, 2015, before Wood, J., of the Nova Scotia Probate Court, who delivered the following decision orally on October 22, 2015, with written reasons filed on October 27, 2015.