Stewart Estate, Re, 2015 NSSC 135

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

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.

                                                                                                   

To continue reading

FREE SIGN UP