2019 NLCA 26, 2019 NLCA 26

Michelle Thorne (appellant) v. Sharon Anne Thorne, John Frederick Thorne, Richard Vincent Thorne, Rose Ann Thorne Walsh, Leonard Thorne, Viki Marie Duffenais, Sean Michael Thorne, Gregory Thorne, Ronnie Thorne (respondents) (18/102) Indexed As: Thorne v. Thorne 2019 NLCA 26 4 C.A.N.L.R. 374 Court of Appeal of Newfoundland and Labrador Fry C.J.N.L., Welsh and Goodridge JJ.A. April 17, 2019

Summary: The appellant, a beneficiary of the residue of the estate of Therese Thorne (the “deceased”), appealed a determination of the Supreme Court of Newfoundland and Labrador that monies that the deceased had in investment and bank accounts were not part of the residue of the estate, but were intended to be divided equally among the deceased’s ten children. Held: Appeal dismissed.

Welsh J.A. ( Fry C.J.N.L. and Goodridge J.A. concurring): The trial judge undertook to weigh all the evidence in order to determine, on a balance of probabilities, the deceased’s intention regarding distribution of the bank and investment accounts. Regarding the bank accounts, two employees involved in the transaction testified that they remembered Therese Thorne telling them that the accounts were to be shared by all ten of her children. The judge accepted the evidence of the employees and their explanation as to how they remembered the deceased’s statement regarding her intention.

On appeal, there is no basis on which to find that the judge erred in his assessment of the evidence. Regarding the investment account, the trial judge accepted the evidence of a financial investment agent that he was acting in accordance with the deceased’s intention when he designated the ten children as beneficiaries based upon his phone conversation with her. The evidence was supported by the evidence of one of the deceased’s children. On appeal, there is no basis on which to find that the trial judge erred in his assessment of this evidence.

The judge did not err in finding that the monies in the investment and bank accounts did not form part of the residue of the estate. Counsel: Appearing on her own behalf, the appellant; Gregory French Q.C., for John Frederick Thorne, Richard Vincent Thorne, Rose Ann Thorne Walsh, Leonard Thorne and Viki Marie Duffenais; Jillian Hewitte, for the respondents, Sharon Anne Thorne and Sean Michael Thorne; and No appearance by Ronnie Thorne and Gregory Thorne.

This appeal was heard on April 17, 2019 before Fry C.J.N.L., Welsh and Goodridge JJ.A. and judgment was delivered orally. The following memorandum of disposition was filed on April 17, 2019 by Welsh J.A. for the Court. ______________________________________________________________ Welsh J.A.: [ 1 ] The parties, all children of Therese Thorne (the “deceased”), do not dispute the validity of their mother’s Will or the distribution of assets set out in the Will. This appeal is brought by one of the beneficiaries of the residue of the estate, Michelle Thorne.

At issue is whether the trial judge erred in concluding that monies that the deceased had in investment and bank accounts were not part of the residue of the estate, but were intended to be divided equally among the deceased’s ten children. [ 2 ] At the hearing, the appeal was dismissed, with costs under column 3 of the scale of costs under the Court of Appeal Rules for one counsel for all the respondents, payable by Michelle Thorne.

The memorandum of disposition follows. [ 3 ] The trial judge undertook to weigh all the evidence in order to determine, on a balance of probabilities, the deceased’s intention regarding distribution of the bank and investment accounts. In her appeal, Michelle Thorne alleged factual errors were made by the trial judge.

That proposition was rejected by this Court. [ 4 ] The judge summarized the evidence of the witnesses, including that of Michelle, Richard and Sean Thorne, two employees of the Bank of Nova Scotia where the bank accounts were held, and the financial investment agent who dealt with the investment account. [ 5 ] Regarding the bank accounts, two employees involved in the transaction testified that they remembered Therese Thorne telling them that the accounts were to be shared by all ten of her children.

The judge accepted the evidence of the employees and their explanation as to how they remembered the deceased’s statement regarding her intention. In addition, the judge accepted the evidence of Richard Thorne who held the accounts jointly with his mother.

The judge was satisfied ( 2018 NLSC 220 ): [48] In my view, there is more than adequate evidence from the account documents and the evidence of both Madonna Hoddinott and Tina Fowler [employees] of the Bank of Nova Scotia to satisfy me, well beyond the balance of probabilities, that the Deceased created a trust by which Richard Thorne was obligated to hold the balance of funds at her passing for her then surviving children. [ 6 ] On appeal, this Court was satisfied that there was no basis on which to find that the judge erred in his assessment of the evidence with respect to distribution of the funds in the bank accounts, or in his determination that the deceased’s intention was that all ten children should share in those proceeds. [ 7 ] Regarding the investment account, the trial judge was aware that the financial investment agent, Mr.

Gregory, had not complied strictly with regular procedures. In particular, regarding correction of the beneficiary, the judge explained: [16] … Mr. Gregory testified that his assistant prepared the document and sent it out with the Estate named as the beneficiary, and he had not seen this. It came back signed in October 2008, and on his examination, he saw the discrepancy between the first application which Sean [Thorne] had signed naming the ten beneficiaries and the replacement one signed by Mrs. Thorne naming the Estate. He testified that he telephoned Mrs.

Thorne in October 2008 to discuss this and to confirm her intentions. She wanted the ten beneficiaries as were in the earlier application. She also asked about the mailing address being used. [17] Because AIM Trimark was wanting this as soon as possible, Mr. Gregory chose not to resend the application to Mrs. Thorne for re- execution, but, on his own, crossed out the beneficiary description of the Estate and replaced it with the same

schedule naming the ten beneficiaries as had been completed in the earlier application signed by Sean Thorne. He also noted that this was a busy time, that he was just picking up these additional clients, and the market was in a serious recession – a crash as he noted it to be. He made the change to designate the ten children as beneficiaries based upon his phone conversation with Mrs. Thorne. [ 8 ] The trial judge accepted Mr.

Gregory’s evidence regarding the deceased’s intention which was supported by the evidence of Sean Thorne: [50] The evidence of Jeffrey Gregory, the initial opening attempt of account #4778, and the evidence of Sean Thorne satisfy me that, on the balance of probabilities, the Deceased intended the beneficiaries to be her ten surviving children. Notwithstanding her frustration with having #4778 set up, based on Sean’s initial understanding and the Deceased’s subsequent confirmation to Mr.

Gregory and to Sean Thorne by telephone in October 2008, I am satisfied that such frustration did not overtake her intention to have all ten children share equally and have that account distributed as such. As well, the Deceased, during the resolution of this delay, would also have seen the first named of three of the ten children in her investment statements and, despite irritation and complaint to Mr. Gregory, did not direct any concern to the clearly named beneficiaries.

This satisfies me as well, on the balance of probabilities, that #4778 was documented consistent with the Deceased’s intention. [ 9 ] On appeal, this Court was satisfied that there was no basis on which to find that the trial judge erred in his assessment of the evidence with respect to distribution of the funds in the investment account, or in his determination that the deceased’s intention was that all ten children should share in those proceeds.

[ 10 ] The judge considered, assessed and drew conclusions from the relevant evidence, including corroborating evidence of the three independent, third-party witnesses, two employees of the bank and the investment agent, who had nothing to gain by their testimony. [ 11 ] For the above reasons, having considered the written and oral submissions of the parties, at the hearing, the Court dismissed the appeal, with costs under column 3 of the scale of costs under the Court of Appeal Rules for one counsel for all the respondents, payable by Michelle Thorne. Appeal dismissed.