Winter Estate, Re, (2002) 202 N.S.R.(2d) 5 (CA)

• Judge: Roscoe, Freeman and Cromwell, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: February 13, 2002
• Jurisdiction: Nova Scotia
• Citations: (2002), 202 N.S.R.(2d) 5 (CA);2002 NSCA 23

Winter Estate, Re (2002), 202 N.S.R.(2d) 5 (CA);

 632 A.P.R. 5

MLB headnote and full text

Temp. Cite: [2002] N.S.R.(2d) TBEd. MR.005

In The Estate Of Hilda Winter, Estate No. 56348, Late of Halifax, in the County of Halifax (appellant)

In The Matter Of the Proof in Solemn Form of the Last Will and Testament of Hilda Winter (respondent)

(CA 173497; 2002 NSCA 23)

Indexed As: Winter Estate, Re

Nova Scotia Court of Appeal

Roscoe, Freeman and Cromwell, JJ.A.

February 13, 2002.

Summary:

A mother died leaving an estate of $4,200,000 equally to her four children. One of the children (Ivo) was appointed executor of her estate. Another child (Joachim) ap­plied under s. 31(2) of the Probate Act for an order removing the executor and appoint­ing an administrator.

The Nova Scotia Supreme Court, in a judgment reported 197 N.S.R.(2d) 385; 616 A.P.R. 385, dismissed the application. Joachim appealed.

The Nova Scotia Court of Appeal dis­missed the appeal.

Executors and Administrators - Topic 384

Appointment, qualification and tenure - Removal and suspension - Conflict of interest - A mother died leaving four children as equal beneficiaries of her $4,200,000 estate - One son (Ivo) was ap­pointed executor - A brother (Joachim) ap­plied under the Probate Act to have Ivo re­moved as executor, alleging conflict of in­terest and hostility between the executor and the other beneficiaries - The trial judge dismissed the application - Conflict of in­terest was not established and hostility between an executor and beneficiaries, by itself, was not sufficient to warrant re­moval - There was no evidence that the es­tate was not being properly administered or that the welfare of the beneficiaries was at risk - Joachim appealed - The Nova Scotia Court of Appeal dismissed the appeal - The trial judge made no error of law - She applied the correct principles of law in exercising her discretion - The trial judge did not ignore or misconstrue relevant evidence and her finding of a lack of conflict was supported by the evidence.

Executors and Administrators - Topic 385

Appointment, qualification and tenure - Removal and suspension - Hostility between executor and beneficiaries - [See Executors and Administrators - Topic 384 ].

Cases Noticed:

Letterstedt v. Broers (1884), 9 App. Cas. 371, refd to. [para. 20].

Exco Corp. v. Nova Scotia Savings & Loan Co. (1983), 59 N.S.R.(2d) 331; 125 A.P.R. 331 (C.A.), refd to. [para. 26].

Statutes Noticed:

Probate Act, R.S.N.S. 1989, c. 359, sect. 31(2) [para. 18].

Counsel:

David P.S. Farrar and Peter W.C. Johnson, for the appellant, Joachim Winter;

Peter M.S. Bryson, Q.C., for the respon­dent, Ivo Winter;

Igor Winter, not appearing;

Thomas M. Macdonald and Julie E. Smith, for the respondent, Itta Winter.

This appeal was heard on February 1, 2002, before Roscoe, Freeman and Cromwell, JJ.A., of the Nova Scotia Court of Appeal.

On February 13, 2002, Freeman, J.A., delivered the following judgment for the Court of Appeal.