Synott v. Bartlett Estate, (2011) 299 N.S.R.(2d) 251 (SC)

• Judge: LeBlanc, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: December 20, 2010
• Jurisdiction: Nova Scotia
• Citations: (2011), 299 N.S.R.(2d) 251 (SC);2010 NSSC 477

Synott v. Bartlett Estate (2011), 299 N.S.R.(2d) 251 (SC);

    947 A.P.R. 251

MLB headnote and full text

Temp. Cite: [2011] N.S.R.(2d) TBEd. FE.072

Raylene Synott (applicant) v. Estate of Raymond Alvin Bartlett (respondent)

(Tru. No. 327067; 2010 NSSC 477)

Indexed As: Synott v. Bartlett Estate

Nova Scotia Supreme Court

LeBlanc, J.

January 17, 2011.

Summary:

This was a reference from a Registrar of Probate respecting a will. The applicant brought the application under s. 64(3) of the Probate Court Practice, Procedure and Forms Regulations, respecting the division of furniture and personal effects of the estate. She sought an order for the disbursement of certain personal items from the estate. At issue was whether the applicant was entitled to receive certain personal effects, or whether the executor's discretion was absolute, as it appeared to be under the will.

The Nova Scotia Supreme Court found that a settlement had been reached between the lawyer for the estate and the applicant and that the parties were bound by it. The court would not, in most instances, interfere with an executor's discretion unless the applicant could satisfy the court that the executor had acted in bad faith or demonstrated a clear bias for or against the applicant to such a magnitude that the executor could not be expected to act impartially. At the very least, bias could be inferred from animosity between the executor and the applicant.

Contracts - Topic 2876

Consideration - What constitutes consideration - Forbearance to sue - This was a reference from a Registrar of Probate respecting a will - The applicant brought the application under s. 64(3) of the Probate Court Practice, Procedure and Forms Regulations, respecting the division of furniture and personal effects of the estate - She sought an order for the disbursement of certain personal items from the estate - At issue was whether the applicant was entitled to receive certain personal effects, or whether the executor's discretion was absolute, as it appeared to be under the will - The Nova Scotia Supreme Court held that a settlement had been reached between the lawyer for the estate and the applicant and that the parties were bound by it - The applicant signified her acceptance of the terms of the offer made by the lawyer by filing an adjournment without delay in the proceedings - This constituted valuable consideration sufficient to form a binding settlement agreement - Although the applicant did not specify the nature of the cause of action (i.e., she did not plead breach of contract), the court had jurisdiction to determine the claim that she had advanced - In most instances, the court would not interfere with an executor's discretion unless the applicant could show that the executor had acted in bad faith or demonstrated a clear bias for or against the applicant to such a magnitude that the executor could not be expected to act impartially - Here, at the very least, bias could be inferred from animosity between the executor and the applicant.

Executors and Administrators - Topic 1605

Probate matters, others than grant of probate or letters - Practice - This was a reference from a Registrar of Probate respecting a will - The applicant brought the application under s. 64(3) of the Probate Court Practice, Procedure and Forms Regulations, respecting the division of furniture and personal effects of the estate - She sought an order for the disbursement of certain personal items from the estate - The Nova Scotia Supreme Court held, inter alia, that a settlement had been reached between the lawyer for the estate and the applicant and that the parties were bound by it - The court recognized that the applicant did not seek either an accounting from the executor or his removal, which would be appropriate approaches to take under the Probate Act - Nonetheless, the court held that the applicant had the right to seek an order from the court if not under the Act, then under s. 67 of the Regulations - Section 67 provided that "Without limiting the powers of the court, the registrar, on hearing an application under this Part, may (a) receive evidence by affidavit or orally; (b) dispose of issues arising out of the application; ... (e) grant any relief to which the applicant is entitled because of a breach of trust, wilful default or other misconduct of the respondent; ... (k) make any order the registrar considers appropriate in the circumstances." - As the matter was before the court, it was authorized to exercise the jurisdiction the Registrar could exercise if she was hearing the matter - See paragraphs 17 and 18.

Executors and Administrators - Topic 2504

Duties and powers of executors and administrators - Payment of legacies - Discretion of executor - Judicial review - [See Contracts - Topic 2876 ].

Practice - Topic 9852

Settlements - What constitutes a settlement - [See Contracts - Topic 2876 ].

Cases Noticed:

Waese et al. v. Bojman et al., [2001] O.T.C. Uned. 505; 50 E.T.R.(2d) 139; 2002 CarswellOnt 5216 (Sup. Ct.), refd to. [para. 10].

Bell, Re (1923), 23 O.W.N. 698 (Ont. H.C.), refd to. [para. 12].

Davis, Re (1983), 14 E.T.R. 83; 1983 CarswellOnt 608 (C.A.), refd to. [para. 12].

IPC Insurance Strategies Inc. v. Sawa et al., [2009] Sask.R. Uned. 30; 2009 CarswellSask 461; 2009 SKCA 80, refd to. [para. 22].

Greenough Estate, Re (2008), 271 N.S.R.(2d) 321; 867 A.P.R. 321; 2008 CarswellNS 659; 2008 NSSC 355, refd to. [para. 24].

Francis v. Allan (1918), 57 S.C.R. 373, refd to. [para. 24].

Authors and Works Noticed:

Anger and Honsberger, The Law of Real Property (3rd Ed. 2008) (Looseleaf), p. 25-18 [para. 24].

Counsel:

Raylene Synott, self-represented;

Raymond Bartlett, Executor.

This reference was heard on December 20, 2010, by LeBlanc, J., of the Nova Scotia Supreme Court, who delivered the following decision on January 17, 2011.