Smith Estate, Re, (2015) 366 N.S.R.(2d) 361 (ProbCt)

• Judge: Muise, J.
• Court: Probate Court of Nova Scotia (Canada)
• Case Date: September 30, 2015
• Jurisdiction: Nova Scotia
• Citations: (2015), 366 N.S.R.(2d) 361 (ProbCt);2015 NSSC 298

Smith Estate, Re (2015), 366 N.S.R.(2d) 361 (ProbCt);

    1154 A.P.R. 361

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. NO.017

In The Matter Of An Application for Proof in Solemn Form by Vanessa Smith as Administratrix of the Estate of Everett Daryl Smith and in her personal capacity;

 

And In The Matter Of The Probate Act, S.N.S. 2000, c. 31;

 

And In The Matter Of An objection to the Application for Proof in Solemn Form by Krista Scott (applicant) in the original Application against the Estate of Everett Daryl Smith and Vanessa Smith as Administratrix and Vanessa Smith in her personal capacity

(SCY431599; Probate File No. 2151; 2015 NSSC 298)

Indexed As: Smith Estate, Re

Nova Scotia Probate Court

Muise, J.

November 7, 2015.

Summary:

The deceased left a handwritten document purporting to be his will. The deceased's common law spouse applied for an interpretation of the purported holograph will. The deceased's daughter, as administratrix, filed a Notice of Objection challenging the validity of the will. With consent, the spouse was added as co-administratrix, but she propounded the will in her personal capacity, not on behalf of the estate. The document was found not to be a valid holograph will nor a valid will under s. 8A of the Wills Act. At issue was costs.

The Nova Scotia Probate Court awarded the daughter solicitor and client costs payable out of the estate. The spouse, who unsuccessfully acted in her personal capacity, was awarded party and party costs payable by the estate. The spouse's propounding of the will was not frivolous or vexatious. The litigation resulted from the fault or acts of the deceased. Litigation to determine the validity of the document as a will was not unreasaonable.

Executors and Administrators - Topic 5548

Actions by and against representatives - Costs - Where payable out of estate - After the deceased died, his daughter and his common law spouse, both an administratrix of his estate, discovered a handwritten document purporting to be a will - On an application for proof in solemn form, the spouse, in her personal capacity, was the propounder of the will and the daughter contested the validity of the document as a will - The court determined that the document was neither a holograph will nor a valid will under s. 8A of the Wills Act - At issue was the costs consequences - The Nova Scotia Probate Court held that the disputed document created sufficient ambiguity to justify or necessitate the issue of its validity being determined through litigation - The spouse, in propounding the will, was not acting frivolously or vexatiously - The litigation resulted from the deceased's own conduct - It could not be said that the spouse acted without reasonable prospect of success - Accordingly, the spouse was entitled to party and party costs payable out of the estate - Had the spouse been acting as a representative of the estate rather than in her personal capacity, the court would not have awarded her solicitor and client costs from the estate - Her conduct in interfering with the daughter's administration of the estate would have limited her to party and party costs - The daughter, acting as representative of the estate, was entitled to solicitor and client costs out of the estate - See paragraphs 12 to 56.

Practice - Topic 7032.1

Costs - Party and party costs - Entitlement to - Estate matters - [See Executors and Administrators - Topic 5548 ].

Practice - Topic 7328

Costs - Costs in probate proceedings - Solicitor and client costs or solicitor and his own client costs - [See Executors and Administrators - Topic 5548 ].

Practice - Topic 7455

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Estates and estate matters - [See Executors and Administrators - Topic 5548 ].

Practice - Topic 7466

Costs - Solicitor and client costs - Entitlement to - Probate actions - [See Executors and Administrators - Topic 5548 ].

Cases Noticed:

Baird Estate, Re (2014), 353 N.S.R.(2d) 226; 1115 A.P.R. 226; 2014 NSSC 444, refd to. [para. 22].

Wittenberg Estate, Re (2015), 364 N.S.R.(2d) 176; 1146 A.P.R. 176; 2015 NSCA 79, refd to. [para. 24].

McDougald Estate, Re (2005), 199 O.A.C. 203 (C.A.), refd to. [para. 25].

McDougald Estate v. Gooderham - see McDougald Estate, Re.

Casavechia v. Noseworthy et al. (2015), 362 N.S.R.(2d) 64; 1142 A.P.R. 64; 2015 NSCA 56, dist. [para. 29].

Fong Estate, Re (2011), 306 N.S.R.(2d) 370; 968 A.P.R. 370; 2011 NSSC 315 (Prob. Ct.), refd to. [para. 32].

Komonen v. Fong - see Fong Estate, Re.

Barrieau Estate, Re, [2008] N.S.R.(2d) Uned. 213; 2008 NSSC 162 (Prob. Ct.), dist. [para. 39].

Van Kippersluis v. Van Kippersluis, [2011] N.S.R.(2d) Uned. 234; 2011 NSSC 399, dist. [para. 40].

Blinn Estate, Re (2013), 325 N.S.R.(2d) 266; 1031 A.P.R. 266; 2011 NSSC 10, refd to. [para. 47].

Statutes Noticed:

Probate Act, S.N.S. 2000, c. 31, sect. 92 [para. 21].

Counsel:

Rebecca Hiltz-LeBlanc, representing Vanessa Smith;

Allen Fownes, representing Krista Scott.

This matter was heard by way of written submissions received on September 30, 2015, before Muise, J., of the Nova Scotia Probate Court, who delivered the following judgment on November 7, 2015.