Estate of Bonar v. J. Bonar, 2022 NSSC 395

SUPREME COURT OF Nova Scotia Citation: Estate of Bonar v. J. Bonar , 2022 NSSC 395 Date: 20221123 Docket: 511880 Registry: Sydney Between: Estate of Mary Jeanette Bonar Applicant v. Joseph Bonar Respondent Judge: The Honourable Justice Patrick J.

Murray H eard: September 1, 2022 Written Decision: November 23, 2022 Counsel: Christopher Conohan for the Estate of Mary Jeanette Bonar Joseph Bonar, self-represented By the Court: Introduction [ 1 ] This is an Application filed by Vivan Ann Carey, on March 1, 2022 seeking an Order for Proof and Solemn Form of the Will of her mother Mary Jeanette Bonar, and for the removal of her brother, Mr. Joseph G.

Bonar, as co-executor of the Estate of Mary Jeanette Bonar. [ 2 ] The Applicant filed two affidavits in support of the Application filed on March 1, 2022 and July 14, 2022; [ 3 ] The Application is contested by Joseph G. Bonar (Joseph) who filed an affidavit with the Court together with a Notice of Objection of Joseph G Bonar on March 22, 2022; [ 4 ] The following Notice of Objections were also filed with the Court. These are in support of Mr. Bonar’s position that the Will should not be accepted in solemn form nor should he be removed as co-executor of his mother’s estate:

i) Notice of Objection of Jason Chapman filed January 28, 2022; ii) Notice of Objection of Joseph Ryan Bonar filed March 22, 2022; iii) Notice of Objection of Angela Bonar filed March 22, 2022; iv) Notice of Objection of Austin Bonar filed March 22, 2022;

v) Notice of Objection of Amanda Bonar filed March 22, 2022; [ 5 ] The Application was heard on September 1, 2022. The witnesses that testified at the hearing were the Applicant, Vivian Carey (Vivian), and the Respondent, Joseph G. Bonar, Jason Chapman, Amanda Chapman and Austin Chapman. The parties made oral submissions to the Court at that time. [ 6 ] Mr. Joseph Bonar stated he is prepared to respect the wishes in his mother’s Will. However, he is also attempting to carry out

the wishes of his father, Daniel Bonar, who passed away on April 9, 1998. Mr. Bonar submitted his mother, Jeanette Bonar, said those wishes did not need to be in her Will. Such a statement would be considered hearsay and is presumptively in admissible. [ 7 ] Mr. Bonar also pleads “squatters rights” with respect to the garage that was left to Vivian who received the residence at located at 11 Patrick Drive, Millville, NS. This will be discussed in further detail later in this decision. [ 8 ] Ms. Carey states Joseph Bonar’s interests are adverse to that of the Estate he has been appointed to represent. Further, Mr.

Bonar has failed to meet the duties required of him under the provisions of Mary Jeanette Bonar’s Will. Mr. Bonar has a duty to separate his Estate duties as Executor from his personal interests. [ 9 ] The Applicant argues Mr. Bonar’s belief or desire to implement what he believes the Testator’s Will was meant to say, as opposed to what it does say goes to the very heart of an Executors duties, to act in an unbiased and impartial manner. [ 10 ] Ms. Carey’s counsel submits the only valid Will properly executed under the laws of Nova Scotia, is that of their mother.

The evidence at the hearing confirmed that the Will in question was written out and signed by the presence of two witnesses. [ 11 ] One of those witnesses is the spouse of Mr. Bonar, Angela Bonar. She is not a beneficiary under the Will. Mr. Bonar was specifically asked by the Court, upon hearing from this witness, if he was contesting that his mother’s Will was a valid, properly signed Will. He stated he was not. [ 12 ] The Applicant submits the case of Schwartz v. Schwartz , 2003 NSSC 109 , for the Courts consideration. The Documentary Evidence [ 13 ] Vivian Carey and Joseph G.

Bonar (Sr.) are the only children of Mary Jeanette Bonar, who passed away on February 21, 2001. [ 14 ] Ms. Carey submits that the Will, the subject of this Application, is the proper Last Will and Testament of her mother. This Will is attached to each of her affidavits filed on March 1, 2022, and July 15, 2022. The Application for Proof in Solemn Form (Form 45) was filed on March 1, 2022. [ 15 ] Mr. Bonar filed an affidavit containing a

summary of his grounds for contesting this Application. The affidavit filed by Joseph G. Bonar is sparse, stating in effect that the Will in question, is not true. Further, he states, he should not be “taken off” as Executor. [ 16 ] The substance of Mr.

Bonar’s objections is contained in his Notice of Objection, which lists five (5) grounds in total. [ 17 ] Angela Bonar, wife of Joseph Bonar filed an affidavit opposing the Application as did Amanda Chapman, the granddaughter of the Testator and the daughter of Joseph and Angela Bonar. [ 18 ] Angela Bonar states the Will is “not the original as I remember” and further states that her husband should not be “taken off” as the Testator’s representative. [ 19 ] Amanda Chapman’s affidavit states the Will “is not true and not the true wishes of Mary Jeanette Bonar”.

As is the situation with that of Joseph Bonar, the Notice of Objections filed by Angela and Amanda contain the substance of their objections to the Application. [ 20 ] Essentially, the grounds pleaded by Mr. Bonar are: 1) that Joseph Bonar has been attempting to follow his mother’s wishes, and 2) that it is Vivian that has been “dragging her heels” in Probate.

In addition, these notices state it is not Joseph Bonar’s intention to ignore the Last Will and Testament of Mary Jeanette Bonar, because he loved his mother and wants “only her wishes to be heard and followed through on”. [ 21 ] Austin Chapman filed an identical Notice of Objection. Jason Chapman and Joseph Ryan Bonar also filed Notices of Objection.

Ryan Bonar did not appear at the hearing to address the Court or to be cross-examined. [ 22 ] In her affidavit (Exhibit #1) filed on March 1, 2022, the Applicant confirmed that notice has been sent to all interested parties and that she has made a true, thorough and diligent search of all places she believed her mother would have kept such a document. Further, Ms. Carey believes the Will dated January 10, 2000, is a true copy of the Last Will and Testament of her mother. [ 23 ] In her second affidavit, Ms. Carey states that her solicitor, Mr.

Conohan, corresponded with her brother, Joseph Bonar, on several occasions, attaching letters dated July 8, 2020, July 20, 2020, and July 24, 2020. These are attached to her affidavits as Exhibits B, C, D . [ 24 ] As a result, a hearing before the Registrar of Probate was held on January 26, 2022. A document purporting to be an original Will of the deceased was deposited with the Probate Court on January 28, 2022 by the Respondent, Joseph G.

Bonar. [ 25 ] Following a second hearing on February 2, 2022, the Registrar of Probate, Nancy McGillivray ruled that the Will did not meet the requirements of the Wills Act of Nova Scotia , R.S., c. 505, s. 1. Both that Will, an original, and the Register’s letter are attached to the Applicant’s affidavit as Exhibits “E” and “F”. [ 26 ] It is apparent that the Will in Exhibit “E” contains only one signature.

Further, both Wills were handwritten and identical in wording except for one word, which I shall later address. [ 27 ] In Joseph Bonar’s Notice of Objection, it is apparent the crux of the dispute involves the garage located on the home of Mary Jeanette Bonar, which in both Wills, (house and land), was left to her daughter, Vivian Carey, except for the land “behind the garage back to the woods is to be given to my granddaughter Amanda Bonar”.

[ 28 ] In his objection, Joseph Bonar states he has followed all of his mother’s wishes and “has not overstepped”. He further states, among other things: “I have my fathers Last Will and Testament saying the garage and belongs go to me which was verbally said that did not have to be transferred to the other Wills because we were all in the understanding that it was given to me.” [ 29 ] These statements were further repeated in Grounds 4 and 5, which are as follows: 4.

I object to the statement “My Solicitor has been advised by Joseph “Joey” Bonar that he wishes to follow the provisions of our father’s Will because it is more favourable to him”. Yes I do agree with my father’s Will and so did my mother and I also agree with my mothers Will. There are some things in my fathers Will that have not been carried through to my mothers Will because my mother said and assumed with all of us present at the time that it did not have to be carried through. For example the garage. 5.

I object to the statement that it was the intention of Joey Bonar to ignore the last will and testament of Mary Jeanette Bonar as he does not agree with what is stated in it because, I always followed my mothers wishes no matter what, I did not ignore her Will. Just because a few things did not get transferred over from my fathers Will and my sister, Vivian and all the other party’s know does not mean I ignored my mothers Will. My mother said that these things do not need to be transferred to the new Will, her Will because it is assumed that it is going to me.

I always followed my mother’s wishes and took care of her bills, belongings and estate. [ 30 ] Mr. Bonar further states that his mother wanted both her children to be co-executors and it “makes no sense to remove one of her children”. (Ground #1) Further, Joseph Bonar objected to Ms. Carey’s statement that her solicitor made attempts to obtain the Last Will of the Testator from him to no avail. [ 31 ] It is apparent from the documents provided that Mr.

Conohan made considerable attempts to obtain the co-operation of Joseph Bonar, while encouraging him to obtain legal advice on these matters. [ 32 ] In her evidence, Ms. Carey stated the proper course of action is the one she has taken. This is a two-pronged application: 1) to have the Will proven; and 2) to have Mr. Bonar removed as co-executor. The Hearing [ 33 ] The Applicant, Vivian Carey, was cross-examined by Joseph Bonar, who asked her about the existence of another Will. She replied “no”, she was not aware of any other Will of her mother. Mr.

Bonar also asked her if she was following their mother’s (Jeannette’

s) wishes. Ms. Carey replied in the affirmative, and when asked “how”, she stated she was following them “in every way.” [ 34 ] The Applicant, Ms. Carey testified it was necessary to bring the matter to Probate, stating that Proof in Solemn Form was the proper way to deal with the wishes expressed in her mother’s Will. When questioned by the Court as to the length of time that had passed in bringing the matter forward, Ms. Carey stated there were “roadblocks” over the years that just could not be settled.

Her affidavit states she looked into having the land subdivided and spoke to a surveyor. [ 35 ] Jason Paul Chapman gave evidence that he was one of the two witnesses to the January 10, 2000 Will, along with Alfred Clarke. Mr. Chapman specifically recalled the date in question, stating he had “come down from the roof” of the Testator’s home which he had been working on. It was lunchtime and he came down from the ladder, confirming that the signature on the Will was his from some time ago. Mr.

Chapman is the husband of the Testator’s granddaughter, Amanda Chapman, stating they have been married 20 years and were together since 1993 (almost 30 years). He recognized the handwriting on the Will as that of his wife, Amanda, but first acknowledged he couldn’t say for sure. Mr. Chapman confirmed that there was a second Will written, Exhibit “E” of the Applicant’s affidavit. He testified he reviewed both Wills, and but for a few words on different lines, the contents were the same, except for one word, “one” and “ring”. Mr. Chapman was recalled to confirm that he and Mr.

Clarke signed at the same time and in the presence of the Testator, who signed as well at that time. [ 36 ] Mr. Bonar has set out five (5) grounds in his Notice of Objection filed in response to the application. While he opposes his mother’s Will being accepted as her Last Will and Testament, it is under that instrument that he has any standing at all as co-executor. [ 37 ] The grounds of his opposition in

summary form are: 1) he has followed his mother’s wishes all along; 2) he has his father’s Will saying the garage belongs to him and it was verbally said this did not have to be transferred to the other Will; 3) he disagrees there were attempts to obtain the Last Will of Jeannette from him to no avail; 4) there are some things in his father’s Will that have not been carried over to his mother’s Will, and didn’t have to be according to his mother; for example, the garage; and 5) he always followed his mother’s wishes “no matter what”. [ 38 ] In cross-examination, Mr.

Bonar agreed the crux of his objection has to do with the garage being mentioned in his father’s Will, but not mentioned in his mother’s Will. Mr. Bonar at one point said it was “not the right Will”, adding “there is a missing Will.” [ 39 ] He agreed that both Wills (Exhibits B and

E) express his mother’s wishes “to a point”. [ 40 ] He further acknowledged the Registrar rejected the Will he had submitted, as it had only one signature. (See Registrar’s letter dated February 3, 2022, as Exhibit “F”). [ 41 ] To his credit, Joseph Bonar, at the hearing, agreed that the Will for which Proof in Solemn Form is sought was duly signed and was not contesting that the signatures on the Will were those of the witnesses and his mother, nor is he questioning his mother’s competence in signing it. [ 42 ] Austin Chapman also testified at the hearing and was cross-examined on this Notice of Objection.

He supports his grandfather Joseph, stating he disagrees with the application to have him removed. Austin Chapman testified that instead of ignoring the Last Will and Testament of Mary Jeannette Bonar, his grandfather has “tried his hardest” to follow his mother and father’s wishes to the best of his

ability. Mr. Chapman was a young infant when his great-grandmother, Mary Jeanette Bonar, passed away. [ 43 ] Amanda Chapman filed a Notice of Objection and was cross-examined on it at the hearing. She supports her father’s position. She confirmed the Will is in her handwriting and that she wrote out the Will at the instruction of her grandmother. Decision [ 44 ] It is improper for a co-executor to impose their will upon another executor as to how the Will being administered is to be interpreted. [ 45 ] The proper course of action is for one or both of the Executors to apply to the Probate Court for an

interpretation of the Will if its terms are unclear or direction from the Court is required. [ 46 ] There must otherwise be strict adherence to the Testators wishes. Trustees and Executors are not permitted to alter the terms of a Will, based on “the family’s understanding” or an Executor’s own understanding of what the testator intended. There must be a separation between their own personal interest and those of the beneficiaries. (See Schwartz Estate at paras. 21-24 ) [ 47 ] Mr. Bonar now states he is prepared to respect his mother’s Will.

Unfortunately, the circumstances, in my respectful view, are too late to allow that to happen. The dye has been cast, so to speak. [ 48 ] The Applicant’s application to remove Mr. Bonar as co-executor of his mother’s Will is granted. I find his attempts to follow the wishes expressed in his father’s unsigned Will amounts to a breach of his duties, however well intended.

It has also caused delay in the estate being probated. [ 49 ] For the reason’s given the Court hereby grants the Order for Proof in Solemn Form, having been satisfied on a balance of probabilities, that the Will submitted to Probate meets the requirements of a valid Will in Nova Scotia, as prescribed by the Wills Act of Nova Scotia . [ 50 ] Costs in the amount of $750.00 are granted in favour of the Applicant. Murray, J.