Walcott v. Walcott Estate, 2023 NSSC 292

SUPREME COURT OF Nova Scotia Citation: Walcott v. Walcott Estate , 2023 NSSC 292 Date: 20230417 Docket: No. 460559 Registry: Sydney Between: Georgina Lynora Walcott, for the Estate of Lynora Walcott Applicant v. Rita Walcott, Gerald Walcott, Rebecca Walcott Respondents Judge: The Honourable Justice Patrick J. Murray Heard: September 23, 24, 2022; June 22, and 29, 2022; in Sydney, Nova Scotia Written Submissions: July 20, 2022; August 4, 2022; and August 9; 2022.

Written Decision: April 17, 2023 Counsel: William Leahey for Georgina Walcott and the Estate Darren Morgan for Rita Walcott and Gerald Walcott Rebecca Walcott, self-represented By the Court: Introduction [ 1 ] This is an application of the Estate of Lynora Christina Walcott, for an Order dismissing three claims for unjust enrichment filed with the Court of Probate on July 13, 2017. [ 2 ] The Estate Administrator, Georgina Lynora Walcott, has filed an affidavit sworn on February 24, 2021, and a supplemental affidavit sworn September 8, 2021 in support of the Estate’s application.

The premise of these is that the three claims filed are without merit. [ 3 ] In particular, Georgina Walcott alleges that the assistance described in the affidavits of her sister, Rita, her brother, Gerald, and her niece, Rebecca Walcott, is of the type rendered by all family members from time to time to her mother, who resided at 21 Gordon Street, Glace Bay, NS.

No one, she says, expected or were told they would receive special compensation for assisting her mother. [ 4 ] Each of the three Claimants, submit their claims should be considered by the Court, as they were the ones who enriched the life of their mother (and grandmother), and enabled her to reside in her home. [ 5 ] The Claimants further submit, they had an understanding that assets would be distributed in a certain way, with Rebecca, in particular, receiving the residence of her grandmother. Factual Background [1]

[ 6 ] Gerald Walcott (“Gerald”) and Rita Walcott (“Rita”) are two of five (5) children of the late Lynora Christina Walcott (“the late Ms. Walcott”), who passed away on July 10, 2016. The third Claimant in this proceeding, Rebecca Walcott (“Rebecca”), is the daughter of Rita, and the granddaughter of the late Ms. Walcott. [ 7 ] In addition to Gerald and Rita there is also Joseph Walcott (“Joseph”); Charlotte Walcott (“Charlotte”), who passed away in February 2020; and Georgina Walcott (“Georgina”). The late Ms.

Walcott did not leave a signed Last Will and Testament when she passed. [ 8 ] Georgina was appointed as Administrator of the Estate of the late Ms. Walcott (the “Estate”). Following this appointment, Gerald, Rita, and Rebecca filed claims against the Estate in July 2017. The respective claims are as follows: (

a) Gerald - $55,000. (

b) Rita - $40,000. (

c) Rebecca - $60,000. [ 9 ] Charlotte passed away without a Last Will and Testament, and left behind a daughter, Nadera Walcott (“Nadera”). Charlotte had previously filed documentation with this Court in which she expressed support for the position advanced in this matter by Gerald, Rita and Rebecca. As her only heir-at-law, Nadera was contacted and provided with notice of the hearing in this matter.

In a response e- mail that has been provided to the Court, she confirmed that she did not wish to participate in the hearing but maintained her late mother’s position in support of Gerald, Rita and Rebecca. [ 10 ] Joseph attended (by phone) in a pre-hearing conference conducted by the Court on September 13, 2021. At that time, he expressed his support for the position of the Estate. [ 11 ] The assets of the Estate consist of two (2) bank accounts that are held at Scotiabank, and having respective balances as of February 1, 2021, in the amounts of $140,675.08 and $4,856.23 (the “Scotiabank accounts”).

There was also cash on hand in the amount of $4,189.05 as recovered from the late Ms. Walcott’s residence. The late Ms. Walcott was the owner of the real property located at 21 Gordon Street, Glace Bay, Nova Scotia. Unfortunately, the house located at this address was the subject of a fire that occurred in January 2016. [ 12 ] Each of the Claimants have filed claims effective July 2017. Each of the three have also filed with the Court an Affidavit providing factual support for the claims submitted.

Unjust Enrichment [ 13 ] Under the doctrine of unjust enrichment, one person should not be permitted to enrich themself unjustly at the expense of another. Restitution should be made where it is just and equitable to do so, and there is no reason in law that would prevent restitution. (Black’s Law Dictionary 6 th Edition) Quantum Meruit [ 14 ] Quantum Meruit means “as much as deserved”. This remedy measures recovery under an implied contract to pay compensation as reasonable value for services rendered.

The claims filed do not claim this remedy. (Black’s Law Dictionary 6 th Edition) Position of the Parties – Evidence Objection has been made by the Estate to several portions of the affidavits of Rebecca ,who is self represented. My ruling on this will follow in my decision. Georgina Walcott [ 15 ] In her initial affidavit (February 2021) Georgina set out the particulars of the Estate including a list of the asset values, and a brief description of the inventory.

With respect to the claims being made, Georgina states she knows of nothing that Rebecca has done that would entitle her to a claim based upon unjust enrichment. “If anything, Rebecca owes money to the Estate… for the benefits bestowed upon her by her grandmother”, that included caring for her as a young child. (Paragraph 9) [ 16 ] Similarly, Georgina took issue with her sister Rita’s claim, pointing out that in the Notice of Claim, Rita acknowledged that both her daughter Rebecca and her grandchild resided “for their entire lives with her mother up until the fire of 2016”. [ 17 ] Likewise, she knew of “no facts on which a claim for unjust enrichment in any amount could be based insofar as Rita is concerned”. [ 18 ] With respect to her brother, Gerald, she knew of no services performed by him for his mother that were done with the expectation of receiving payment.

She acknowledged that Gerald “made a few repairs” to the home, but never sought payment, adding the repairs were not substantial in “any way, shape or form”. (Paragraph 11) [ 19 ] Georgina expressed that it is her desire to close the Estate and distribute the assets, less expenses, to the heirs lawfully entitled to share in the Estate. (Paragraph 13) [ 20 ] In her second affidavit (September 2021) Georgina describes the relationship she had with her mother, whom she said, was able to manage things for herself.

Georgina stated she left home on Gordon Street in September 1978 or 1979 to be with her grandmother at 11D Jessome Street at her father’s request. She stated she would visit her parents frequently. Georgina said she then moved to Alberta with her boyfriend. Her son Damien was born there in 1982. That same year she moved back to Jessome Street with her grandmother and stayed for about a year.

[ 21 ] Over the years, Georgina resided in several locations, including Alberta; the Northwest Territories; Northern Manitoba; Windsor, NS; MacVicar Street, Glace Bay; Casey’s Lane, Glace Bay; and Yarmouth, NS. [ 22 ] During all this time, Georgina said she maintained contact with her mother, often visiting her, and doing things for her when she returned to Glace Bay. Her affidavit reads: 26. Everywhere I have lived since I left home in 1978/1979 I have always called my mother and father to see how they were doing and let them know how I was doing. Later on, my kids would also call.

This was something that I did once a week or so when I was living out west. [ 23 ] In her affidavit (at paragraph 33), Georgina stated when she would visit, her mother was often alone, either watching TV or in her garden. She described the garden as small, 6 x 6 feet.

She said her mother was always turning the soil, and planting some kind of vegetable, stating it was in the backyard and that Lynora enjoyed it very much. [ 24 ] Further, Georgina stated up until the last year of her life, her mother would be going to the basement, and that her mother was either doing laundry, putting coal on the fire or cleaning the furnace. “You could always tell”, she said, “because she wore an old jacket and hat covered with soot. (Paragraph 35) [ 25 ] In her affidavit, Georgina said her mother “was independent up until her death”. [ 26 ] In addition, she said at no point did Rebecca or Rita pay rent or pay for childcare provided to them by her mother. [ 27 ] With respect to payment by Rebecca of household bills, Georgina testified she was using these utilities, such as phone, power and the internet, and therefore should have paid for them. [ 28 ] In cross-examination Georgina was asked about their view that she had seen nothing that gave rise to unjust enrichment, and testified they were raised as a family unit to “help out”.

In addition, she testified she has read Rita’s Notice of Objection, and her opinion had not changed. [ 29 ] Georgina further indicated that Rebecca was born in 1982 and that Rita left the house in 1993 when Rebecca was 11 stating “if anything, Rita and Rebecca would owe the Estate”. She was challenged by Rita’s counsel on the basis of her earlier statement that family help family, without any charge. The Estate has made no such claim against any of the Claimants. [ 30 ] It was further suggested to her that Rita would be at her mother’s everyday, and was involved as if, she was still living there.

Georgina acknowledged that Rita would see her mother, having earlier indicated her mother was elderly and the situation was “hard on her”. [ 31 ] Georgina was further cross examined about the work Gerald had done, as set out in his affidavit, and that paragraph 11, for example, detailed a great deal of work. [ 32 ] Georgina testified Gerald could have done “some work”, but disputed the amount of work he did, and maintained the work Gerald did was “not substantial” in nature. Rebecca Walcott [ 33 ] Rebecca Walcott is the granddaughter of Lynora Walcott.

She was born in 1982 and lived with her grandmother all of her life, until the time of the fire on January 8, 2016. [ 34 ] During this time Rebecca graduated from high school and went on to obtain a Bachelor of Education in Fort Kent, Maine, graduating from the one-year program in 2005. She worked while completing her education. [ 35 ] Rebecca’s mother, Rita Walcott, also resided at Lynora’s (her mother’s residence).

Rebecca testified that Rita resided there with her and her grandmother until approximately 2001, when Rita finally took up residence on Jessome St., Glace Bay. [ 36 ] Rebecca had a child, a son, Misel, who was born in 2007. She was employed as a substitute teacher for about 8 years. She then trained to become a Continuing Care Assistant (CCA) and obtained employment with the New Waterford Homemaker’s Service where she has worked since 2014. [ 37 ] Rebecca testified that she and her son were the sole occupants with her grandmother at 21 Gordon Street from 2001 to 2016.

She testified that her grandmother had “lymphoedema” and required care, as she did not have the use of her left arm. [ 38 ] Rebecca said she was able to assist Lynora by completing numerous tasks in the home. Attached to her affidavit are (Tab 9, paragraph14) are photos that show her grandmother’s condition. [ 39 ] Rebecca testified she performed the everyday tasks that needed to be done to maintain a home such as laundry, putting coal in the furnace, snow removal and gardening.

In the earlier years her grandmother was able to perform these tasks, but as time went on, she required more assistance. [ 40 ] Rebecca’s mother, Rita, and her uncle, Gerald, were also there to help. Rebecca also took her grandmother to medical appointments and picked up her medication. She did these things while working and raising her son. [ 41 ] In cross-examination, Rebecca agreed she did not pay rent to her grandmother, and does not pay rent now to her mother, Rita, with whom she resides with her son. [ 42 ] It was further suggested to her in cross-examination by Mr.

Leahey that she did these things because she loved her

grandmother. Rebecca agreed she loved her grandmother but stated she did these tasks because her grandmother asked her. [ 43 ] Rebecca testified it was Lynora’s intention to leave the residence to Rebecca in her Will. She knew this because her grandmother told her, she said. That evidence is hearsay which is presumptively inadmissible. Gerald Walcott [ 44 ] Gerald Walcott did not reside with his mother but performed services for her to assist her in her home. His services were tangible and easily identifiable. He cut the grass, shovelled the driveway, built the deck.

The fact that his tools and his generator remained at the house is telling of the contribution Gerald made to his mother. [ 45 ] Gerald’s evidence was that his mother called upon him to assist with the house at Gordon Street. Arrangements were made for him to come down from Halifax. He purchased a dishwasher for her. She had to get by with one hand. [ 46 ] He described the garden as 25 by 25 feet, and not 6 by 6 feet. He knew this because he worked the garden. He turned the soil, he testified, not his mother. There was no tiller. She was the “general foreman” he said.

Considering Lynora’s health and advancing age, Gerald’s direct testimony was plausible. [ 47 ] In cross-examination, Gerald Walcott stated his belief that the Estate had been enriched as the house was not going to the intended beneficiary. A promise had not been fulfilled, he said, and the Estate benefited from the work he did. [ 48 ] It was “partly” that Rebecca did not receive the house, and “partly” because he would not be getting the value of the materials and improvements made to the property, that he decided to make his claim.

He agreed the unsigned Will mentioned only Rebecca and not that he would be transferred the house. [ 49 ] Gerald said he did not expect to be paid for the work at the time he did it. He agreed his mother was not totally disabled but needed help. He did not agree the work the three Claimants performed is the type of assistance all the family did from time to time. He held no animosity toward his siblings. He simply did not think it was fair that those who helped their mother, should go uncompensated. This, of course, is for the Court to decide.

Rita Walcott [ 50 ] Rita Walcott confirmed her signature on her affidavit (Tab 1) and that the contents were true and accurate. Like the other Claimants, she testified the amount of her claim, $40,000 was recommended by her previous solicitor, Mr. Gillis. [ 51 ] She performed many services for her mother over the years and these are listed in paragraphs 4 and 26.

In cross-examination she confirmed that her claim was based on the fact that she helped her mother and did what her mother asked her to do. [ 52 ] In respect of paragraph 2 of her Notice of Claim, Rita testified that what her mother said would happen, “non -completion of a representation” was not completed. She never spoke to her mother of making such a claim, but Rita said her mother would tell her, “You always take care of me”. Once again, this is a hearsay statement, as Lynora is deceased. [ 53 ]

Section 45 of the Evidence Act cautions against granting any order, without corroboration by other material and admissible evidence. [ 54 ] Rita, in her evidence, stated she was aware that as one of five children, she would receive one fifth of the estate on intestacy. She testified she became aware of that in July 2017, when her mother died.

Like Gerald, Rita stated, any entitlement would be for the Court to decide. [ 55 ] Rita testified that she would be making the claim even if Joseph and Georgina were not entitled to receive a share of the estate because her mother was enriched by her, and she helped her mother save the money she saved. [ 56 ] Rita testified her mother opening a savings account in 1978 in her and Rita’s name jointly, a second account was opened in 1995 in both their names to provide easy access for Rita to pay bills from it. Rita said she did not have a passbook to the savings account.

Rita testified she went to the bank to pay bills for years, even when her father was living. [ 57 ] Rita felt some entitlement because she helped her mother more than the other two siblings, Georgina and Joseph.

She agreed in cross-examination that the unsigned Will in paragraph 4 stated that (if Rebecca had passed) Georgina and her would be treated the same, not that Rita would receive $40,000. first and then one-fifth of the residue. [ 58 ] Rita agreed that if all five contributed to their mother’s welfare, then she would agree to an equal sharing, “but they did not”, she said. [ 59 ] Rita said she did not dislike her siblings and has little dealings with them. She did the things she did, kept the fire going, shoveled steps and other tasks since she was 13 or 14 years of age.

Her siblings did not help with the driveway, cutting grass or in the garden. Georgina resided in the home only until she was 16 years old, Rita said. [ 60 ] Rita agreed in cross-examination, she had no contract with her mother, and assisted her mother because she loved her, and her mother asked her to do it. She acknowledged she paid no rent to her mother, while she resided with her. Doctrine of Unjust Enrichment – The Law [ 61 ] In B2B Bank v. Shane , 2020 NSCA 15 , the Court discussed “unjust enrichment”: [24] In Moore v.

Sweet , 2018 SCC 52 , the Supreme Court of Canada recently dealt with this doctrine and set out the basis on which a

plaintiff will be successful in a claim for unjust enrichment: [35] Broadly speaking, the doctrine of unjust enrichment applies when a defendant receives a benefit from a plaintiff in circumstanceswhere it would be “against all conscience” for him or her to retain that benefit. Where this is found to be the case, the defendant will beobliged to restore that benefit to the plaintiff. As recognized by McLachlin J. in Peel (Regional Municipality) v.

Canada, (SCC), [1992] 3 S.C.R. 762, at p. 788, “At the heart of the doctrine of unjust enrichment . . . lies the notion of restoration of a benefitwhich justice does not permit one to retain.” [36] Historically, restitution was available to plaintiffs whose cases fit into certain recognized “categories of recovery” — includingwhere a plaintiff conferred a benefit on a defendant by mistake, under compulsion, out of necessity, as a result of a failed or ineffectivetransaction, or at the defendant’s request (Peel, at p. 789; Kerr, at para. 31).

Although these discrete categories exist independently ofone another, they are each premised on the existence of some injustice in permitting the defendant to retain the benefit that he or shereceived at the plaintiff’s expense. [37] In the latter half of the 20th century, courts began to recognize the common principles underlying these discrete categories and,on this basis, developed “a framework that can explain all obligations arising from unjust enrichment” (L. Smith, “Demystifying JuristicReasons” (2007), 45 Can. Bus. L.J. 281, at p. 281; see also Rathwell v.

Rathwell, (SCC), [1978] 2 S.C.R. 436, andMurdoch v. Murdoch, (SCC), [1975] 1 S.C.R. 423, per Laskin J., dissenting). Under this principled framework, aplaintiff will succeed on the cause of action in unjust enrichment if he or she can show: (

a) that the defendant was enriched; (b)that the plaintiff suffered a corresponding deprivation; and (

c) that the defendant’s enrichment and the plaintiff’s correspondingdeprivation occurred in the absence of a juristic reason (Pettkus v. Becker, (SCC), [1980] 2 S.C.R. 834, at p. 848;Garland, at para. 30; Kerr, at paras. 30-45). While the principled unjust enrichment framework and the categories coexist (Kerr, atparas. 31-32), the parties in this case made submissions only under the principled unjust enrichment framework. These reasons proceedon this basis. (Emphasis added) [62] In Kerr v.

Baranow, 2011 SCC 10, the Court described Steps 1 and 2: [36] The first and second steps in the unjust enrichment analysis concern first, whether the defendant has been enriched by theplaintiff and second, whether the plaintiff has suffered a corresponding deprivation. [37] The Court has taken a straightforward economic approach to the first two elements — enrichment and correspondingdeprivation. Accordingly, other considerations, such as moral and policy questions, are appropriately dealt with at the juristic reasonstage of the analysis: see Peter, at p. 990, referring to Pettkus, Sorochan v.

Sorochan, (SCC), [1986] 2 S.C.R. 38, andPeel, affirmed in Garland v. Consumers’ Gas Co., 2004 SCC 25, [2004] 1 S.C.R. 629, at para. 31. [38] For the first requirement — enrichment — the plaintiff must show that he or she gave something to the defendant which thedefendant received and retained. The benefit need not be retained permanently, but there must be a benefit which has enriched thedefendant and which can be restored to the plaintiff in specie or by money. Moreover, the benefit must be tangible.

It may be positiveor negative, the latter in the sense that the benefit conferred on the defendant spares him or her an expense he or she would have had toundertake (Peel, at pp. 788 and 790; Garland, at paras. 31 and 37). [39] Turning to the second element — a corresponding deprivation — the plaintiff’s loss is material only if the defendant has gaineda benefit or been enriched (Peel, at pp. 789-90).

That is why the second requirement obligates the plaintiff to establish not simply thatthe defendant has been enriched, but also that the enrichment corresponds to a deprivation which the plaintiff has suffered (Pettkus, at p.852; Rathwell, at p. 455). [63] With respect to Step 3, without “juristic reason”, the Court again quoted from the Supreme Court of Canada in Moore v. Sweet,2018 SCC 52, [54] ... As observed by Cromwell J. in Kerr (at para. 40): The third element of an unjust enrichment claim is that the benefit and corresponding detriment must have occurred without a juristicreason.

To put it simply, this means that there is no reason in law or justice for the defendant’s retention of the benefit conferred by theplaintiff, making its retention “unjust” in the circumstances of the case . . . . [Emphasis added.] … [56] In Garland, this Court shed light on exactly what must be shown under the juristic reason element of the unjust enrichmentanalysis — and in particular, on whether this third element requires that cases be decided by “finding a ‘juristic reason’ for a defendant’senrichment” or instead by “asking whether the plaintiff has a positive reason for demanding restitution” (para. 41, citing Garland v.Consumers’ Gas Co. (2001), (ON CA), 57 O.R. (3d) 127 (C.A.), at para. 105).

In an effort to eliminate theuncertainty between these competing approaches, Iacobucci J. formulated a juristic reason analysis that proceeds in two stages. [57] The first stage requires the plaintiff to demonstrate that the defendant’s retention of the benefit at the plaintiff’s expense cannotbe justified on the basis of any of the “established” categories of juristic reasons: a contract, a disposition of law, a donative intent, andother valid common law, equitable or statutory obligations (Garland, at para. 44; Kerr, at para. 41).

If any of these categories applies, theanalysis ends; the plaintiff’s claim must fail because the defendant will be justified in retaining the disputed benefit. For example, aplaintiff will be denied recovery in circumstances where he or she conferred a benefit on a defendant by way of gift, since there isnothing unjust about a defendant retaining a gift of money that was made to him or her by (and that resulted in the correspondingdeprivation of) the plaintiff.

In this way, these established categories limit the subjectivity and discretion inherent in the unjustenrichment analysis and help to delineate the boundaries of this cause of action (Garland, at para. 43). [58] If the plaintiff successfully demonstrates that none of the established categories of juristic reasons applies, then he or she hasestablished a prima facie case and the analysis proceeds to the second stage. At this stage, the defendant has an opportunity to rebut the

plaintiff’s prima facie case by showing that there is some residual reason to deny recovery ( Garland , at para. 45). The de facto burden of proof falls on the defendant to show why the enrichment should be retained.

In determining whether this may be the case, the court should have regard to two considerations: the parties’ reasonable expectations and public policy ( Garland , at para. 46; Kerr , at para. 43 ). [59] This two-stage approach to juristic reason was designed to strike a balance between the need for predictability and stability on the one hand, and the importance of applying the doctrine of unjust enrichment flexibly, and in a manner that reflects our evolving perception of justice, on the other.

Ruling on Admissibility [ 64 ] The Estate has objected to the admissibility of paragraphs 3 and 28 of Rebecca’s affidavit filed August 9, 2021. Paragraph 28 is repeated in her affidavit sworn July 5, 2017, as paragraph 22. These documents are in evidence at Tabs 11 and12 of Exhibit 1 and state: 3. THAT attached herewith and marked as Exhibit “A” is a copy of a draft Will, which was never executed by my grandmother, that illustrates her intention to benefit me substantially as a result of the assistance that I had rendered over the years. 28.

THAT it was my understanding that on the death of my grandmother, I was going to be the beneficiary of her home and contents. [ 65 ] Paragraph 22 of Tab 12 reads: 22. THAT it was my understanding that on the death of my grandmother, I was going to be the beneficiary of her home and contents. [ 66 ] It is undisputed that this draft Will was not formally executed and finalized by the late Ms.

Walcott in accordance with the Wills Act of Nova Scotia , and in particular, section 30(2) . [ 67 ] There is also no dispute that no application was ever brought to have the draft Will proved in Solemn Form, as the Last Will and Testament of the late Ms.

Walcott, pursuant to s. 31(2) of the Wills Act . [ 68 ] It has been submitted by the Respondents (Counsel for Rita and Gerald) that the draft Will should be admitted into evidence and given what weight the Court deems appropriate in the circumstances. [ 69 ] With respect to evidence of intention, unsigned draft Wills cannot be admitted as evidence of intention of the testator at the time of her death.

Intention may change over time, and what is relevant is the intention evident at the time of signing a Last Will and Testament. (See TLC The Land Conservancy of British Columbia (Re) , 2014 BCSC 97 ) [ 70 ] Accordingly, these paragraphs are not admissible to establish the late Ms.

Walcott’s intention at the time of her death and cannot be admitted for that purpose. [ 71 ] The Court will admit the paragraphs for the sole purpose of explaining the actions of the parties with respect to this proceeding, and in particular, Rebecca Walcott. (ie. for context) Analysis/Findings [ 72 ] The evidence satisfies me there were tangible things performed by each of the three

(3) Claimants that enriched the life of their mother and grandmother, Lynora Walcott. These were not isolated incidents but tasks that went above and beyond what might be expected of a child or grandchild, even though they too had received some benefit from the situation. [ 73 ] In addition, there was a corresponding deprivation of time, expense and effort. These things not only be benefitted Lynora but were needed by her, by reason of her disability, which increased as she reached her elder years.

All three Claimants testified she asked them for help and relied upon them to give it to her. [ 74 ] Rita continued to reside in the house after her father died in 1995, moving out in 2001. For 20 years prior to that she assisted both her parents with the needs of their everyday life including their banking, finances and the personal care that her mother needed. [ 75 ] Rebecca lived with her grandmother her whole life. An example of a tangible benefit her grandmother needed was the massage therapy that Lynora received.

After a year of driving her from Glace Bay to the Cape Breton Regional Hospital, three time per week, Rebecca learned to provide the therapy herself saving considerable time, expense, and hardship for her grandmother. [ 76 ] Rebecca testified that in fact the care she provided to her grandmother, especially in later years, led her to a change in her career from teaching to a continuing care professional. [ 77 ] Neither Rita nor Rebecca were obligated to do the things they did just because they loved Lynora. It could be argued they were morally obligated and lived there rent free.

It should be noted that Rebecca was raising a child and attending school, during which time Rita stepped in. [ 78 ] This evidence is essentially uncontradicted. [ 79 ] Similarly, Gerald performed tasks for his mother during her lifetime as a devoted son. It was enough for him that she asked, he said. He did not need a promise or expect to be repaid. Still, in assisting her he was required to travel from Halifax to Glace Bay, arranging for tools and building supplies to be transported.

He testified he built a deck, tore down the garage, bought his mother a dishwasher, and readied the garden, that he confirmed was 25’ by 25’, cut the wood, and was generally there for her. [ 80 ] All Claimants said they loved their mother (grandmother). Their actions proved their loyalty and dedication to her. They would have done these things in any event, says the Respondent Estate. In her evidence, Rebecca said she assumed responsibility for the

utility bills except for the light bill which her grandmother insisted they spilt. [81] I find the evidence as a whole demonstrates that there was an enrichment to Lynora during her lifetime and a correspondingdeprivation to Rita, Gerald, and Rebecca. This satisfies two of the three legal requirements under the doctrine of unjust enrichment. [82] It is apparent the main opposition put forward by the Respondent, is that under the law, no award should be made to any of theClaimants if there was a juristic reason for retention of the benefit. In this case the Estate submits that the services provided to the lateMs.

Walcott by the Claimants were made with “donative intent”, that is with the intention of gifting them. [83] The Estate submits donative intent is one of the established categories that constitute in law, a juristic reason, that being theintent was to gift the services by the “donor” Claimants to the “donee”, the late Ms. Walcott. Decision [84] Where the evidence of the Claimants differs from that of the Estate Administrator, the Court is persuaded that Rebecca, Geraldand Rita were in a better position to describe the assistance they provided to Lynora Walcott.

All family members were of coursefamiliar with the late Ms. Walcott’s disability, but as it progressed and as she advanced in age, it was these family members who werefamiliar with the day to day needs she had, and how they could be addressed on a day to day basis. [85] There is no question the late Ms.

Walcott was a survivor, and lived a life where wood and coal were the source of heat, onewhere she had to climb the stairs from the basement, and one where she had the use of one arm. [86] The Court is satisfied that the many important functions that each of the Claimants provided enriched the life of the late Ms.Walcott and were arduous in nature. Completing them was done at considerable expense of time, energy, caring and in some casesfinancial. [87] Although each of the Claimants intended to benefit Lynora, they did not necessarily intend to benefit the Estate.

Rebecca,Gerald, and Rita were forthright about this in their evidence. [88] Under the provisions of Intestate Succession Act, there is no obligation on an heir or descendant of the deceased to haveperformed any acts of kindness. There exists no such obligation whatsoever. An heir at law is entitled to receive their share by reasononly that they are an heir at law without contributing to the Estate. [89] For this reason, a claim of unjust enrichment is separate and apart from the entitlement under the laws of intestacy.

However,if such a claim is awarded, it does affect the distribution of the assets of the Estate. [90] The test as to whether there is an enrichment without juristic reason is flexible and the factors to be considered vary dependingupon the situation before the Court. No obligation arose here from the parties’ circumstances, and the element giving rise to a legal giftwere not present. (see Kerr v. Baranow, 2011 SCC 10, at paragraph 44) [91] The Estate submits that these claims were made to deplete the Estate of its assets, thereby depriving Georgina and Joseph ofany share.

The Estate argued the Claimant bore animosity toward the other siblings, which was their motive in making these claims. While this submission may appear to have merit, considering the total amount claimed in relation to the amount of Estate assets, actualproof of that assertion, is a different matter. [92] Based on the evidence as a whole, I find that assertion has not held true. I further find it to be somewhat irrelevant to the mainquestion of whether the Claimants have met their burden of showing their claims have merit.

The Claimants have all said they wouldleave it to the Court to decide a fair and just amount, should their claims be allowed. [93] With respect to the Estate’s “floodgates” argument, such as children debating who did more for the deceased, I say the lawprovides a remedy only if the test is met. The Applicants must discharge the onus of proof. [94] With respect to the Estate’s submission (citing Currie v. Sheilds Estate, [1993] P.E.I.J. No. 128) that an imbalance betweenservices rendered and services received will not give rise to an implied promise to pay.

In Currie the court was dealing with the mutualrendering and recovery of services, akin to a claim in quantum meruit. Such is not the case here. In this case the three claims made wereclearly based on unjust enrichment, as expressly stated in the Notice of Claim at Tabs 2, 3 and 4 of Exhibit 1. (See Taylor Estate v.Stiles, [2004] N.S.J. No. 246, at paragraph 56; and Power Estate (Re), [2005] N.S.J. No. 629 at paragraph 29) [95] I accept that the claims have merit. [96] I have earlier said, the Court has some flexibility in deciding an appropriate remedy.

In terms of quantum, such an award by itsnature, is somewhat arbitrary. (See Comeau v. Boudreau Estate, ) For this reason, and others discussed, I am of theview that some restraint should be shown in such matters. Conclusion [97] For all of the above reasons, I find that the Estate’s Application should be dismissed. Further, I find that each of the Claimantshave discharged their onus. In the result, I order that Rita, Joseph, and Rebecca shall each receive the sum of $15,000. for theenrichment they provided to their mother and grandmother.

The balance of the Estate shall be divided in accordance with the laws ofintestacy. [98] In addition, the draft Will cannot be accepted by the Court as a “fixed and final expression of the late Ms. Walcott’s intention”to dispose of her property on death. (See Robitaille v. Robitaille Estate, 2011 NSSC 203) [99] Accordingly, Rebecca’s request for the real property at 21 Gordon Street to be conveyed to her must be denied.

[ 100 ] With respect to costs, the Court will receive submissions in 30 days, unless the parties are able to agree on an amount. [ 101 ] Order accordingly. Murray, J.