Stewart Estate, Re, 2015 NSSC 135

• Judge: Coughlan, J.
• Court: Probate Court of Nova Scotia (Canada)
• Case Date: December 16, 2014
• Jurisdiction: Nova Scotia
• Citations: 2015 NSSC 135;(2015), 359 N.S.R.(2d) 176 (ProbCt)

Stewart Estate, Re (2015), 359 N.S.R.(2d) 176 (ProbCt);

    1133 A.P.R. 176

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. MY.009

In The Matter Of: The Estate of Frances Margaret Stewart, late of Lunenburg, in the County of Lunenburg, Province of Nova Scotia

(Bwt. No. 429670; 14841; 2015 NSSC 135)

Indexed As: Stewart Estate, Re

Nova Scotia Probate Court

Coughlan, J.

May 6, 2015.

Summary:

The personal representative (Hopkins) of the deceased's estate applied to pass his accounts. Two of the estate's beneficiaries filed a notice of objection. A hearing took place on April 16, 2014. On April 21, 2014, two individuals wrote a letter to the Registrar which questioned Hopkins' credibility. Hopkins did not receive a copy of the letter. The Registrar issued her decision on June 8, 2014. Hopkins appealed, arguing that the Registrar (1) breached the rules of natural justice and/or procedural fairness by failing to provide Hopkins with an opportunity to respond to the letter; and (2) erred by disallowing certain expenses.

The Nova Scotia Probate Court held that Hopkins should have been provided with a copy of the letter and given the opportunity to respond. The court reviewed the accounts and reduced the amount that Hopkins was required to reimburse to the estate by $158.70, which was the cost of flowers at the funeral.

Administrative Law - Topic 2004

Natural justice - General principles - What are the requirements of natural justice - [See Executors and Administrators - Topic 6305 ].

Administrative Law - Topic 2006

Natural justice - General principles - Circumstances when rules applicable - [See Executors and Administrators - Topic 6305 ].

Administrative Law - Topic 2264

Natural justice - The duty of fairness - When required - [See Executors and Administrators - Topic 6305 ].

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - [See Executors and Administrators - Topic 6305 ].

Administrative Law - Topic 2272

Natural justice - The duty of fairness - Circumstances or powers to which duty applies - [See Executors and Administrators - Topic 6305 ].

Administrative Law - Topic 2606

Natural justice - Evidence and proof - Receipt of evidence or information after close of hearing - [See Executors and Administrators - Topic 6305 ].

Executors and Administrators - Topic 2800

Duties and powers of executors and administrators - Payment of debts - General principles - [See second Executors and Administrators - Topic 6210 ].

Executors and Administrators - Topic 2802

Duties and powers of executors and administrators - Payment of debts (incl. funeral expenses) - What constitute reasonable funeral expenses - [See Executors and Administrators - Topic 6209 and first Executors and Administrators - Topic 6210 ].

Executors and Administrators - Topic 6209

Accounts and passing of accounts - General principles - Expenses - General - The personal representative (Hopkins) of the deceased's estate applied to pass his accounts - Hopkins' wife was the owner of the company which made the cremation box and gravemarker for the deceased's ashes - The gravemarker was a piece of slate rock on which pictures were painted - The company was paid $2,985 - The Registrar allowed $1,000 for the cremation box and gravemarker - Hopkins' appealed - The Nova Scotia Probate Court dismissed the appeal - There was nothing before the court that would cause it to vary the Registrar's decision - See paragraph 30 and 31.

Executors and Administrators - Topic 6210

Accounts and passing of accounts - General principles - Estate expenses - What constitutes - The personal representative (Hopkins) of the deceased's estate applied to pass his accounts - He claimed he travelled 4,496 km on the estate's business, and that he took the mileage from a daily log book that he kept for estate business - The Registrar found that the mileage claimed seemed excessive - She disallowed trips claimed by Hopkins that were made prior to the deceased's death when the Public Trustee was the deceased's guardian - She allowed reimbursement for 858 km - The Nova Scotia Probate Court dismissed Hopkins' appeal - The mileage claimed was excessive - For example, on both June 29 and July 5, 2012, Hopkins picked up items from and returned items to the funeral home - This could have been done in one trip - Hopkins' log book was not in evidence and the court was not prepared to accept his evidence as to the mileage he travelled on behalf of the estate - See paragraphs 26 and 27.

Executors and Administrators - Topic 6210

Accounts and passing of accounts - General principles - Estate expenses - What constitutes - Hopkins was the son-in-law of Stewart - In 2007, one of Stewart's friends allegedly loaned Stewart $4,200 for the purpose of installing a ramp and downstairs bathroom in Hopkins' residence, to make it easier for Stewart when she visited - Stewart died in 2012 - Hopkins, the personal representative of Stewart's estate, applied to pass his accounts, which included repaying the $4,200 loan - The Registrar disallowed the disbursement - The Nova Scotia Probate Court dismissed Hopkins' appeal - The renovations were a benefit to Hopkins and his wife - They and not the estate were required to repay the loan - See paragraphs 32 to 35.

Executors and Administrators - Topic 6305

Accounts and passing of accounts - Practice - Procedure - The personal representative (Hopkins) of the deceased's estate applied to pass his accounts - Two of the estate's beneficiaries filed a notice of objection - A hearing took place on April 16, 2014 - On April 21, 2014, two individuals wrote a letter to the Registrar which questioned Hopkins' credibility - Hopkins did not receive a copy of the letter - The Registrar issued her decision on June 8, 2014 - Hopkins appealed, arguing that the Registrar breached the rules of natural justice and/or procedural fairness by failing to provide him with an opportunity to respond to the letter - The Nova Scotia Probate Court held that a Registrar owed the personal representative of an estate a duty of fairness - The Registrar was acting in a judicial role and judicial procedures were to be followed - The principles of natural justice required that a party be given an opportunity to hear the case against it and an opportunity to present its case - Hopkins should have been provided with a copy of the letter in order for him to respond to its contents - Although the letter was improper, there was nothing before the court to indicate that it was considered by the Registrar or had any impact on her decision - See paragraphs 7 to 21.

Executors and Administrators - Topic 6404

Accounts and passing of accounts - Particular accounts - Administration costs - [See first Executors and Administrators - Topic 6210 ].

Cases Noticed:

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 9].

Saulnier v. Klyn Estate and Miller (1988), 86 N.S.R.(2d) 29; 218 A.P.R. 29 (C.A.), refd to. [para. 17].

Counsel:

Rubin Dexter for Byford Hopkins, on the issue of natural justice;

Byford Hopkins, self-represented on remaining issues;

Angus Stewart-Gray, self-represented;

Anne Stewart-Gray, self-represented.

This appeal was heard in Bridgewater, N.S., on December 16, 2014, before Coughlan, J., of the Nova Scotia Probate Court, who delivered the following written decision on May 6, 2015.