Urquhart Estate, Re, 2009 NSSC 76

Judge:Coughlan, J.
Court:Nova Scotia Probate Court
Case Date:April 09, 2009
Jurisdiction:Nova Scotia
Citations:2009 NSSC 76;(2009), 278 N.S.R.(2d) 83 (ProbCt)
 
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Urquhart Estate, Re (2009), 278 N.S.R.(2d) 83 (ProbCt);

    886 A.P.R. 83

MLB headnote and full text

Temp. Cite: [2009] N.S.R.(2d) TBEd. AP.014

In The Matter of: the Estate of Eric George Urquhart, late of Chaswood, in the Halifax Regional Municipality and Province of Nova Scotia

Garry Deir and Jean Deir (claimants) v. The Estate of Eric George Urquhart, Sr., deceased (respondent)

(Probate 51960; Hfx 306279; 2009 NSSC 76)

Indexed As: Urquhart Estate, Re

Nova Scotia Probate Court

Coughlan, J.

April 9, 2009.

Summary:

Urquhart and his wife lived in a house owned by Urquhart. The house needed repairs. In 1994 they approached Urquhart's daughter and her husband (Jean and Garry Deir) to assist with renovations. The Deirs agreed to contribute to the renovations, which were undertaken in 1995. In 1995, Urquhart prepared a will leaving his estate to his wife and, in the event of her death, after certain specific gifts, to Jean Deir as alternate residual beneficiary. At the same time, Urquhart gave instructions for a deed conveying his real property, except for a 2.514 acre lot, to the Deirs. The deed was never signed. Urquhart's wife died in 1997. Urquhart died November 29, 2001. In April 2001, Urquhart prepared a new will leaving his estate to his 12 children equally. Before his death, he had a telephone conversation with Jean Deir stating that he would make a payment to the Deirs. No payment was made. A Grant of Probate for Urquhart's estate was issued January 16, 2002. The Deirs claimed against Urquhart's estate claiming breach of contract, constructive or resulting trust, payment of $250,000 on the basis of quantum meruit, or unjust enrichment.

The Nova Scotia Probate Court held that there was no contract, no trust, and no unjust enrichment because there was a juristic reason for the enrichment. The court found that a claim of quantum meruit was made out and assessed the Deirs' damages at $40,931.65, being the amount of the funds provided toward the renovations, expenses they incurred and the value of their labour.

Contracts - Topic 8502

Evidence - General - Proof of contract - Urquhart and his wife lived in a house owned by Urquhart - The house needed repairs - In 1994 they approached Urquhart's daughter and her husband (Jean and Garry Deir) to assist with renovations - The Deirs agreed to contribute to the renovations, which were undertaken in 1995 - In 1995, Urquhart prepared a will leaving his estate to his wife and, in the event of her death, after certain specific gifts, to Jean Deir as alternate residual beneficiary - At the same time, Urquhart gave instructions for a deed conveying his real property, except for a 2.514 acre lot, to the Deirs - The deed was never signed - Urquhart's wife died in 1997 - Urquhart died November 29, 2001 - In April 2001, Urquhart prepared a new will leaving his estate to his 12 children equally - Before his death, he had a telephone conversation with Jean Deir stating that he would make a payment to the Deirs - No payment was made - A Grant of Probate for Urquhart's estate was issued January 16, 2002 - The Deirs claimed against Urquhart's estate claiming, inter alia, breach of contract - The Nova Scotia Probate Court held that the Deirs failed to establish that a contract existed between them and Urquhart, or the terms of any contract - See paragraphs 34 to 41.

Executors and Administrators - Topic 5700

Actions by and against representatives - Evidence - Claim by or against estate - Corroboration requirement - The Nova Scotia Probate Court stated that "In a proceeding against the personal representative of a deceased person, an opposite party ... cannot obtain an award against the Estate on their own testimony, unless their testimony is corroborated by other material evidence." (Evidence Act, s. 45) - The court referred to case law that determined what was required by way of corroboration - See paragraphs 27 to 31.

Executors and Administrators - Topic 5701

Actions by and against representatives - Evidence - Claim by or against estate - What constitutes corroboration - [See Executors and Administrators - Topic 5700 ].

Executors and Administrators - Topic 5701

Actions by and against representatives - Evidence - Claim by or against estate - What constitutes corroboration - Urquhart and his wife lived in a house owned by Urquhart - The house needed repairs - In 1994 they approached Urquhart's daughter and her husband (Jean and Garry Deir) to assist with renovations - The Deirs agreed to contribute to the renovations, which were undertaken in 1995 - In 1995, Urquhart prepared a will leaving his estate to his wife and, in the event of her death, after certain specific gifts, to Jean Deir as alternate residual beneficiary - At the same time, Urquhart gave instructions for a deed conveying his real property, except for a 2.514 acre lot, to the Deirs - The deed was never signed - Urquhart's wife died in 1997 - Urquhart died November 29, 2001 - In April 2001, Urquhart prepared a new will leaving his estate to his 12 children equally - Before his death, he had a telephone conversation with Jean Deir stating that he would make a payment to the Deirs - No payment was made - The Deirs claimed against Urquhart's estate claiming breach of contract, constructive or resulting trust, payment on the basis of quantum meruit, or unjust enrichment - The Nova Scotia Probate Court held that there was corroboration of the Deirs' evidence that satisfied s. 45 of the Evidence Act - Terrance Urquhart, Tammy Myers and Cynthia Hamilton, all children of Urquhart, testified that there was an agreement between Urquhart and the Deirs that the Deirs would receive Urquhart's real property - Terrance Urquhart and Tammy Myers testified that Archie Rogers and Blaine Hamilton worked on the renovations - Cynthia Hamilton testified that her husband, Blaine Hamilton, was paid $400 cash weekly for his work on the project - Cynthia Hamilton also testified that she saw Garry Deir and Archie Rogers with sketches of the "farm", which was how the family referred to Urquhart's residence - See paragraphs 32 and 33.

Restitution - Topic 784

Benefit acquired from the plaintiff - Recovery based on quantum meruit - Work performed or goods provided - Urquhart and his wife lived in a house owned by Urquhart - The house needed repairs - In 1994 they approached Urquhart's daughter and her husband (Jean and Garry Deir) to assist with renovations - The Deirs agreed to contribute to the renovations, which were undertaken in 1995 - In 1995, Urquhart prepared a will leaving his estate to his wife and, in the event of her death, after certain specific gifts, to Jean Deir as alternate residual beneficiary - At the same time, Urquhart gave instructions for a deed conveying his real property, except for a 2.514 acre lot, to the Deirs - The deed was never signed - Urquhart's wife died in 1997 - Urquhart died November 29, 2001 - In April, 2001, Urquhart prepared a new will leaving his estate to his 12 children equally - Before his death, he had a telephone conversation with Jean Deir stating that he would make a payment to the Deirs - No payment was made - The Nova Scotia Probate Court allowed a quantum meruit claim by the Deirs against Urquhart's estate - The court assessed their damages at $40,931.65, being the amount of the funds provided toward the renovations, expenses they incurred and the value of their labour - See paragraphs 42 to 49 and 53 to 66.

Trusts - Topic 2146

Resulting trusts - Intention - Circumstances where intention may be inferred or presumed - Urquhart and his wife lived in a house owned by Urquhart - The house needed repairs - In 1994 they approached Urquhart's daughter and her husband (Jean and Garry Deir) to assist with renovations - The Deirs agreed to contribute to the renovations, which were undertaken in 1995 - In 1995, Urquhart prepared a will leaving his estate to his wife and, in the event of her death, after certain specific gifts, to Jean Deir as alternate residual beneficiary - At the same time, Urquhart gave instructions for a deed conveying his real property, except for a 2.514 acre lot, to the Deirs - The deed was never signed - Urquhart's wife died in 1997 - Urquhart died November 29, 2001 - In April 2001, Urquhart prepared a new will leaving his estate to his 12 children equally - Before his death, he had a telephone conversation with Jean Deir stating that he would make a payment to the Deirs - No payment was made - The Deirs claimed against Urquhart's estate claiming, inter alia, a resulting trust - The Nova Scotia Probate Court stated that "In order to establish a resulting trust, a common intention of the parties must be expressed or implied. In this case, there is no expressed common intention to establish a trust and, from the evidence, such an intention cannot be implied." - See paragraphs 4 and 52.

Cases Noticed:

Johnson v. Nova Scotia Trust Co. et al. (1973), 6 N.S.R.(2d) 88 (C.A.), refd to. [para. 28].

Smallman v. Moore, [1948] 3 D.L.R. 657 (S.C.C.), refd to. [para. 29].

Deglman v. Guarantee Trust Co. of Canada et al., [1954] S.C.R. 725, refd to. [para. 43].

Burgess Estate, Re (1964), 4 N.S.R. 1965-69 361 (S.C. In Banco), refd to. [para. 45].

Peter v. Beblow, [1993] 1 S.C.R. 980; 150 N.R. 1; 23 B.C.A.C. 81; 39 W.A.C. 81, refd to. [para. 50].

Counsel:

Douglas J. Livingstone, for the claimants;

Roberta J. Clarke, Q.C., and Adrienne Bowers, for the respondent.

This case was heard in Halifax, N.S., on January 26-29, 2009, by Coughlan, J., of the Nova Scotia Probate Court, who delivered the following decision on April 9, 2009.

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