MacCallum v. Langille (Estate of), 2021 NSSC 229

probate COURT OF Nova Scotia Citation: MacCallum v. Langille (Estate of) , 2021 NSSC 229 Date: 20210621 Docket No. ST501808 Registry: Truro In the matter of an Application by Claude MacCallum and In the matter of the Estate of Cora J. Langille DECISION Judge: The Honourable Justice Jeffrey R. Hunt Heard: Oral Decision: June 21, 2021, in Truro, Nova Scotia June 21, 2021 Written Release: July 26, 2021 Counsel: Sandra McCulloch, Solicitor for the Estate of Cora Langille Claude MacCallum, Self-Represented By the Court (orally): Introduction [ 1 ] This is a matter in the Probate Court of Nova Scotia.

The background is as follows. Cora Langille executed a Last Will through the office of Ronald Creighton, QC on March 25, 2014. This is a relatively short and straightforward document that made provision for the disposition of her Estate. [ 2 ] Ms. Langille passed away just over six years later on August 7, 2020.

Her named Executor, John Robert Langille, her brother, subsequently applied for and was issued a Grant of Probate through the Probate Court at Truro on September 3, 2020. [ 3 ] On September 29, 2020 Claude MacCallum, Cora Langille’s former son in law filed a Notice of Application with the Probate Court stating that the reason for his application was to “contest will”. Before the Court now is a motion from the Estate seeking

summary judgement setting aside his challenge on the basis that it is doomed to fail, discloses no claim known to law and can be adjudicated under the

summary judgment standard. [ 4 ] In

summary, the position of Mr. MacCallum is as follows: - he is the former son in law of Cora Langille. - he was married to Ms. Langille’s daughter, Shirley. Shirley predeceased her mother, sadly succumbing to cancer in May 2014.

- the Will of Cora Langille contained a residue clause as follows: 5 (

b) To call in and convert into cash the remaining rest and residue of my Estate and to divide the net proceeds thereof equally among those then living of my daughter, Shirley E. MacCallum, my grandson, David MacCallum, and my niece, Valerie Suidgeest. - Shirley MacCallum did predecease her mother. As noted, she passed in 2014, her mother, roughly six years later in 2020. - The Estate accordingly takes the position that paragraph 5(

b) operates to divide the residue between the two surviving beneficiaries named in the clause, these being David MacCallum and Valerie Suidgeest. - Mr. Claude MacCallum says this would be unjust. He argues that his wife’s wish had been that he would get the portion of the residue that would have come to her had she survived her mother. He produces a letter from his deceased wife in which she asks her mother to do this. Issues 1. Does Claude MacCallum have standing to advance his Application of September 29, 2020? 2. Is the Estate entitled to

summary judgment with respect to the Application? Context of this motion [ 5 ] This proceeding is in the Probate Court of Nova Scotia and I am sitting as a Judge of the Probate Court. The Probate Act, and the Regulations made pursuant to this Act, do not have a specific provision for a

summary judgment process. [ 6 ] The Probate Act does however incorporate by reference the Civil Procedure Rules by virtue of

section 102 of the Act. It provides as follows: 102 Where no provision is made in this Act or in the Probate Rules with respect to practice or evidence and in so far as this Act to the Probate Rules do not extend, the Civil Procedure Rules apply. [ 7 ] I also refer to s. 3 of the Probate Court Practice, Procedure and Forms Regulations at

section 3 : 3(1) Where any practice and procedure respecting probate is not provided for by these regulations or the Act, the Civil Procedure Rules apply.

(2) Where any practice or procedure respecting probate is not provided for by the Regulations or the Civil Procedure Rules, a court may make any order or decision concerning it that considers necessary or appropriate in the circumstances.

(3) An Order or decision of a Court may be forwarded to the prothonotary of the Supreme Court who shall, on receipt of it, enter it as a record of the Supreme Court, and thereupon it becomes an order of the Supreme Court enforceable pursuant to the Civil Procedure Rules. [ 8 ] Accordingly, this Court can apply the provisions of the Civil Procedure Rules to this proceeding. It is only logical that this be the case. There is no reasonable argument for allowing unmeritorious claims to proceed with no mechanism for addressing them. No party is served by allowing claims that are doomed to fail being permitted to carry on using limited resources of both the parties and the court.

Standing [ 9 ] The Estate first asserts that Mr. Claude MacCallum lacks standing to advance the motion he does. [ 10 ] Mr. MacCallum submitted his Application pursuant to section 64(1) of the Probate Court Practice, Procedure and forms Regulations, NS Reg 119/2001 (hereinafter the “ Regulations ”). Section 64(1) provides: 64(1) An application may be made to a court under this Part respecting any contentious matter.

(2) For the purpose of this part, a “respondent” includes but is not limited to any person interested in an estate.

(3) A person interested in an estate may commence an application under this Part by filing with a court and serving on the respondents: (

a) a notice of application in Form 45; and (

b) an affidavit in Form 46 containing a list of persons interested in the estate and swearing to the facts on which the application is based. [ 11 ] The Regulations define a person interested in an estate at

section 63 : 63(1) Subject to

Section 71, a person interested in an estate is, for the purposes of this Part, (

a) A personal representative of an estate; or (

b) Any of the persons referred to in subsection 52(1). And the persons referred to in subsection 52(1) are as follows: 52(1) Subject to subsection (2), a person interested in an estate is, for purposes of this Part, any: (

a) residuary beneficiary; (

b) unpaid non-residuary beneficiary; (

c) person entitled to share in the distribution of the estate on intestacy; (

d) life tenant; (

e) trustee, guardian, court-appointed guardian or attorney appointed under the Powers of Attorney Act for a person under a disability; (

f) trustee, guardian, court-appointed guardian or attorney appointed under the Powers of Attorney Act for missing person or unascertained person; (

g) the Public Trustee, where the Public Trustee Act applies; (

h) unpaid claimant or creditor who has filed a claim in accordance with

Section 48; (

i) unreleased security; (

j) personal representative. [ 12 ] Mr. MacCallum has filed his Application in his personal capacity, seeking to challenge the Will on the basis that he personally should benefit from the Estate, in his personal capacity, Mr. MacCallum is not any of the persons described at subsection 52(1) of the Regulations . [ 13 ] Based on the operation of these sections the Estate submits Mr. MacCallum does not enjoy standing. [ 14 ] I have determined to proceed as follows. I am going to pass over the determination of this issue and consider the positions on the merits.

Depending on the outcome of this analysis it may or may not be necessary to determine the standing issue. Evidence [ 15 ] In the record on this motion are affidavits of Claude MacCallum and the lawyer for Cora Langille, Ronald Creighton, QC. [ 16 ] I do not intend to restate here all the evidence or arguments presented. I will offer an overview of the elements necessary to put the Court’s findings and conclusions in context. I have however considered everything in the record in coming to my conclusions. Claude MacCallum

[ 17 ] Although the Estate is the moving party, I am going to address Mr. MacCallum’s evidence first as it sets the context for what the Estate is responding to. [ 18 ] Mr. McCallum sets out in his filings his perspective on the relationship between he and his deceased spouse Shirley and his then mother in law, Cora Langille. Even on his telling it was clearly a complex and fraught relationship.

For instance, in his April 19, 2021 affidavit he states: ...from 2008 until her death in May 2014 Shirley MacCallum was not even allowed to visit the family property passed down from generations on her Fathers side....Shirley and her husband shared an apartment in Truro.

Her mother drove by - not once stopped to visit, Christmas not even a card, birthdays nothing... [ 19 ] In his March 24, 2021 affidavit, he states Cora Langille did not visit her daughter throughout the time she was battling the cancer that eventually took her life. (although I note that in his February 9 th affidavit, he states she did visit once, although the visit ended badly according to his affidavit.) [ 20 ] He notes that perhaps Cora didn’t want to visit when he (meaning Claude) was there, but he states there were many times he was not present but she did not choose to visit at those times either.

His affidavit states that Cora Langille did not attend the funeral or burial of her daughter. [ 21 ] These are only a few examples from the materials of what seems to be clearly complex relationship. [ 22 ] Despite these issues, Cora Langille did choose to include her daughter in the Will, but only in the event she survived her mother. [ 23 ] The MacCallum affidavits contain a focus on a letter written by Shirley MacCallum to her mother where she asks her mother to give Claude, if Shirley died, any share of the Estate which would have been destined for Shirley, had she survived her mother. [ 24 ] Mr.

MacCallum’s submissions are largely focused on this letter and his argument that justice and fairness demand that as a 30 year son in law he ought to be entitled to any share of the Estate which might have been directed to Shirley, had she lived. Ronald Creighton [ 25 ] The moving party here advanced two affidavits from Mr. Creighton. He was the experienced solicitor who acted for Cora Langille. He addressed the circumstances around the preparation of her Will, Power of Attorney and healthcare directives. [ 26 ] His evidence sets out in some detail the discussions with Ms.

Langille respecting the drawing of the Will and her wishes for the disposition of her Estate. [ 27 ] Included in his evidence are portions directly relevant to the question of Cora Langille’s intentions with respect to her daughter, the import of her surviving her mother, and her intentions with respect to her son in law, Mr. MacCallum. [ 28 ] Mr.

Creighton’s supplementary affidavit specifically attaches memos to file dealing with these issues and the instructions he received from his client. [ 29 ] These instructions were taken in 2014, some 6 years before her death and while her daughter was ill but still alive. [ 30 ] Her instructions were that she did intend to favour her daughter, but only if she outlived Ms. Langille. She provided specific instructions that she did not wish to gift any portion of her Estate to her son in law, Mr. MacCallum.

She did make specific and generous provision for her grandson David, the child of Shirley and Claude. [ 31 ] Based on the evidence supplied by Mr. Creighton, there is nothing in the instructions or the language of the Will which evidence ambiguity, confusion or uncertainty.

Summary judgment on evidence [ 32 ] Civil Procedure Rule 13.04 provides for

summary judgment on evidence in an action: 13.04

(1) A judge who is satisfied on both of the following must grant

summary judgment on a claim or a defence in an action: (

a) there is no genuine issue of material fact, whether on its own or mixed with a question of law, for trial of the claim or defence; (

b) the claim or defence does not require determination of a question of law, whether on its own or mixed with a question of fact, or the claim or defence requires determination only of a question of law and the judge exercises the discretion provided in this Rule 13.04 to determine the question.

(2) When the absence of a genuine issue of material fact for trial and the absence of a question of law requiring determination are established,

summary judgment must be granted without distinction between a claim and a defence and without further inquiry into chances of success.

(3) The judge may grant judgment, dismiss the proceeding, allow a claim, dismiss a claim, or dismiss a defence.

(4) On a motion for

summary judgment on evidence, the pleadings serve only to indicate the issues, and the subjects of a genuine issue of material fact and a question of law depend on the evidence presented.

(5) A party who wishes to contest the motion must provide evidence in favour of the party’s claim or defence by affidavit filed by the contesting party, affidavit filed by another party, cross-examination, or other means permitted by a judge.

(6) A judge who hears a motion for

summary judgment on evidence has discretion to do either of the following: (

a) determine a question of law, if there is no genuine issue of material fact for trial; (

b) adjourn the hearing of the motion for any just purpose including to permit necessary disclosure, production, discovery, presentation of expert evidence, or collection of other evidence. [ 33 ] As a court begins to undertake a

summary judgement analysis it must keep in mind the following admonition from the Supreme Court of Canada in Attorney General (Canada) v. Lameman , 2008 SCC 14 : [10] ... The

summary judgment rule serves an important purpose in the civil litigation system. It prevents claims or defences that have no chance of success from proceeding to trial. Trying unmeritorious claims imposes a heavy price in terms of time and cost on the parties to the litigation and on the justice system. It is essential to the proper operation of the justice system and beneficial to the parties that claims that have no chance of success be weeded out at an early stage. [ 34 ] The Nova Scotia Court of Appeal has provided much direction with respect to the operation of our

summary judgement rule. In Shannex Inc. v. Dora Construction Ltd ., 2016 NSCA 89 , Justice Fichaud set out a series of sequential questions to be asked when considering Rule 13.04: [34] I interpret the amended Rule 13.04 to pose five sequential questions: • First Question : Does the challenged pleading disclose a “genuine issue of material fact”, either pure or mixed with a question of law? [Rules 13.04(1), (2) and (4)] If Yes, it should not be determined by

summary judgment. It should either be considered for conversion to an application under Rules 13.08(1)(

b) and 6 as discussed below [paras. 37-42] or go to trial. The analysis of this question follows Burton ’s first step. A “material fact” is one that would affect the result. A dispute about an incidental fact - i.e. one that would not affect the outcome - will not derail a

summary judgment motion: 2420188 Nova Scotia Ltd. v. Hiltz , 2011 NSCA 74 , para. 27 , adopted by Burton , para. 41, and see also para. 87 (#8). The moving party has the onus to show by evidence there is no genuine issue of material fact. But the judge’s assessment is based on all the evidence from any source. If the pleadings dispute the material facts, and the evidence on the motion fails to negate the existence of a genuine issue of material fact, then the onus bites and the judge answers the first question Yes. [Rules 13.04(4) and (5)] Burton , paras. 85-86, said that, if the responding party reasonably requires time to marshal his evidence, the judge should adjourn the motion for

summary judgment.

Summary judgment isn’t an ambush. Neither is the adjournment permission to procrastinate. The amended Rule 13.04(6)(

b) allows the judge to balance these factors. • Second Question : If the answer to #1 is No, then: Does the challenged pleading require the determination of a question of law, either pure, or mixed with a question of fact? If the answers to #1 and #2 are both No,

summary judgment “must” issue: Rules 13.04(1) and (2). This would be a nuisance claim with no genuine issue of any kind – whether material fact, law, or mixed fact and law. • Third Question : If the answers to #1 and #2 are No and Yes respectively, leaving only an issue of law, then the judge “may” grant or deny

summary judgment: Rule 13.04(3). Governing that discretion is the principle in Burton ’s second test: “Does the challenged

pleading have a real chance of success?” Nothing in the amended Rule 13.04 changes Burton’s test. It is difficult to envisage any other principled standard for a

summaryjudgment. To dismiss summarily, without a full merits analysis, a claim or defence that has a real chance of success at a later trial orapplication hearing, would be a patently unjust exercise of discretion. It is for the responding party to show a real chance of success. If the answer is No, then

summary judgment issues to dismiss the ill-fatedpleading. • Fourth Question: If the answer to #3 is Yes, leaving only an issue of law with a real chance of success, then, under Rule 13.04(6)(a):Should the judge exercise the “discretion” to finally determine the issue of law? If the judge does not exercise this discretion, then: (1) the judge dismisses the motion for

summary judgment, and (2) the matter with a“real chance of success” goes onward either to a converted application under Rules 13.08(1)(

b) and 6, as discussed below [paras. 37-42],or to trial. If the judge exercises the discretion, he or she determines the full merits of the legal issue once and for all. Then the judge’sconclusion generates issue estoppel, subject to any appeal. This is not the case to catalogue the principles that will govern the judge’s discretion under Rule 13.04(6)(a). Those principles willdevelop over time. Proportionality criteria, such as those discussed in Hryniak v. Mauldin, 2014 SCC 7 , [2014] 1 S.C.R. 87, willplay a role. A party who wishes the judge to exercise discretion under Rule 13.04(6)(

a) should state that request, with notice to the other party. Thejudge who, on his or her own motion, intends to exercise the discretion under Rule 13.04(6)(

a) should notify the parties that the point isunder consideration. Then, after the hearing, the judge’s decision should state whether and why the discretion was exercised. The reasonsfor this process are obvious: (1) fairness requires that both parties know the ground rules and whether the ruling will generate issueestoppel; (2) the judge’s standard differs between

summary mode (“real chance of success”) and full-merits mode; (3) the judge’s choicemay affect the standard of review on appeal. [35] In Baypoint Holdings Ltd. v Royal Bank of Canada, 2018 NSCA 17, the court synthesized the analysis required on a motionunder Rule 13.04 and expressed it in this language: 1. Does the challenged pleading disclose a “genuine issue of material fact, either pure or mixed with a question of law”? 2. Does the challenged proceeding require the determination of a question of law, either pure, or mixed with a question of fact? 3.

Does the challenged pleading have a real chance of success? 4. Did the judge exercise the “discretion” to fully determine the issue of law? 5. If the motion under Rule 13.04 is dismissed, should the action be converted to an application, and if not, what directionshould govern the conduct of the action? (¶34-42) [36] Thus, in this case the Court must ask itself these questions in relation to the issues before the Court. [37] I have been assisted in the application of this test by the manner in which the Court of Appeal worked through the elements ofthe test in HRM v. Annapolis Group Inc, 2021 NSCA 3.

Question 1 - Genuine issue of material fact [38] The first question posed by Shannex asks whether the pleadings disclose a genuine issue of material fact? If the answer is yes,the matter is not one for

summary judgment. A material fact is one which would affect the result. [39] Case law indicates that to decide whether an allegation of fact is material, a court must consider whether the allegation isessential to establish a pleaded cause of action. This would be modified to fit the circumstances of Mr. MacCallum’s challenge to theWill here. [40] We are required to consider whether the allegations of fact in support of his challenge are the subject of a genuine dispute on amaterial point. [41] The party moving for

summary judgement bears the onus of demonstrating that there is no genuine issue of material fact. If themoving party fails to discharge that burden (i.e. if the pleadings and evidence reveal a genuine issue of material fact), then the answer tothis question is “Yes”. [42] In that case, there is no need to move on to the Second Question.

Instead, the motion is dismissed, and the Court jumps forwardto the Fifth Question and Rule 13.08 where the Court convenes a hearing to consider alternative procedural mechanisms which mightafford a more efficient and cost-effective resolution to the dispute. [43] I have concluded there are no material issues of material fact in issue. I will explain why this is the case. [44] The Estate in this matter argues that even if we accept the facts advanced by Mr.

MaCallum, there is no theory of law underwhich he could be successful in arguing that the intended gift to his former spouse should transfer to him. [45] The Estate has not sought to cross examine Mr. MacCallum. They are prepared to accept for the purposes of this motion that

Shirley MacCallum sought to ask her mother to carry over any potential gift intended for her to Claude. The Estate would say none ofthis is material even if accepted. [46] I have accepted for the purposes of this analysis that Mr. MacCallum will be able to prove the existence of this letter and thatthere was a genuine wish on the part of Shirley MacCallum that her mother would choose to favour Mr. MacCallum. The issue thatremains however is whether this matters in law. [47] There was no evidence presented that was directed at challenging issues of execution of the document.

Neither was there anyactual evidence on issues of capacity or undue influence. There is no live dispute of material fact presented that would requiredetermination. The claim appears to be based in a novel theory of law around the operation of the wishes of a contingent beneficiary. [48] This allows the analysis to move on to the second step in the Shannex test.

Question 2 - Question of law to be determined [49] The second question from Shannex is as follows: If the answer to #1 is No...[i.e. there is no genuine issue of material fact]…then: Does the challenged pleading require the determinationof a question of law, either pure or mixed with a question of fact? [50] Is there any application or operation of law, which on this record could ground a successful challenge to this Will which wouldresult in Mr. McCallum becoming a beneficiary by way of bequest or intestacy? [51] On this point the Estate argues that Mr.

McCallum’s claim is based in an argument that by failing to make alternative provisionfor him, an issue of moral unfairness or injustice has arisen that at law must have a remedy. To this the Estate says there is no such issueand no such remedy. [52] A contest over this Will would proceed with the application of some very well-established principles of law andinterpretation. In order to have a will proven in the instance of a contest, the court must be satisfied of three requirements, which wereset out by the Supreme Court of Canada in Vout v.

Hay, (SCC), [1995] 2 S.C.R. 876, and applied by this Court in ReWillis Estate, 2009 NSSC 231. First, the formalities of execution required pursuant to the Wills Act, R.S.N.S. 1989, c. 505, must besatisfied and the testator must have known and approved the contents of the will. The onus of proving these requirements rest with theapplicant. There has been no challenge in this case to suggest all of the requirements of

section 6 of the Wills Act were not satisfied.The will is in writing and it is signed by the testator and by two witnesses (in the testator’s presence). Once it is shown that the will wasduly executed with the required formality, a rebuttable presumption would arise that the testator knew and approved of the contents ofthe will. There is nothing whatsoever on this record that would ground any attack on these elements.

This would mean the presumptionwas not rebutted and as such, the first requirement for proof would be met. [53] The second requirement is that an applicant must show that the testator possessed the required capacity to create andunderstand the will when it was executed. However, proof of proper execution also raises a rebuttable presumption that the testator hadthe required capacity when the will was executed. There is nothing at all on this record which could serve as the basis for an attack onthis presumption. Accordingly, this would result in this presumption being operative as well.

This would result in the secondrequirement for proof being met. [54] Finally, a court dealing with a challenge to the Will would be required to assess whether it had been shown that undueinfluence was applied to the testator. The burden of proof rests on the party attacking the will to show that the testator’s assent wasobtained by undue influence, such that the will is a product of coercion rather than of the testator’s wishes. Once again there is nothing inthe record advanced here to bear this out in any fashion.

There simply put no evidence to show that any undue influence was exercisedupon the testator in this matter. This would be the third and final element required for proof of the Will. [55] Beyond proof of the Will itself, the Estate notes that the only conceivable statutory basis one could hope to raise in attacking itsoperation would be some resort to the Testators’ Family Maintenance Act, RSNS 1989, c. 465, which provides relief in certaincircumstances to dependants. However, this class of persons is defined in the Act (see

section 2) and clearly does not cover a son in law. [56] Put simply, Mr. MacCallum was not a dependant of Cora Langille, nor a child, as these terms are defined in the statute. Thisstatute carries no hope of remedy for Mr. MacCallum. [57] So applying the

summary judgment test, these are the elements which would have to be answered in order to address thequestion of whether there are any applicable statutes or common law doctrines which will operate to invalidate the operation of the Willand create a possibility of bequest to him or claim in intestacy, or any valid and sustainable claim in law against the Estate? [58] This leads us to the third question posed in Shannex. Question 3 - Real chance of success [59] The third question posed by Shannex is: If the answers to #1 and #2 are No and Yes respectively, leaving only an issue of law, then the judge “may” grant or deny

summaryjudgment… Governing that discretion is the principle in Burton’s second test: “Does the challenged pleading have a real chance ofsuccess?” [60] This is the true heart of the Estate’s challenge to Mr. McCallum’s claim. The Estate forcefully argues that there has been notrue challenge to Cora Langille’s competency or capacity to execute her Will. Rather the suggestion is that the wishes she expressedthrough the plan evident in the Will were unfair to him, a 30 + year son in law.

[61] The clause in question has been referred to above, but I will repeat it here: 5 (

b) To call in and convert into cash the remaining rest and residue of my Estate and to divide the net proceeds thereof equally amongthose then living of my daughter, Shirley E. MacCallum, my grandson, David MacCallum, and my niece, Valerie Suidgeest. [62] The Estate points out that Mr. MacCallum has not actually challenged the legal

interpretation of the operation of this term butrather challenges what he clearly perceives to be the unfairness it works to him. [63] The Estate argues this is of no consequence. There is no ambiguity in the clause and no reason to doubt the clear operation ofthe wording of the clause. In fact, they have advanced in the Affidavit of Ron Crieghton clear evidence that this operation is exactlywhat the testator intended. [64] The principles with respect to the

interpretation of a Will are quite well settled. One commonly cited authority in this provinceis Justice Davison’s ruling in Re Carter Estate (1991), (NS SC), 109 N.S.R. (2d) 384 which has often been referred toas a roadmap for the

interpretation exercise: 16 The principles used in

interpretation of wills or considered by the Appeal Division of this Court in Re O’Brien (1978), (NS CA), 25 N.S.R. (2d) 262 at 266 where Cooper, J. A. approved of the rules enunciated by Kelly, J. of the Ontario High Courtin Re Kirk (1956), (ON SC), 2 D.L.R. (2d) 527 at 528 as follows: In my opinion, the first duty of the Court in construing a will is to ascertain the intention of the testator from the language used in thewill.

The proper procedure is to form an opinion, apart from the cases, and then determine whether the cases require a modification ofthat opinion; the Court should not begin by considering how far the will resembles others on which decisions have been given: ReBlantern, Lowe v. Cooke, [1891] W.N.54. There are certain rules of construction to which a Judge ought to adhere: 1. To read the Will without paying any attention to legal rules; 2. To have regard not only to the whole of the clause which is in question, but to the will as a whole, which forms the contextto the clause; 3.

To give effect, if possible, to all parts of the will and so to construe the will that every word shall have effect, if somemeaning can be given to it and if some meaning is not contrary to some intention plainly expressed in other parts of the will; 4. When the Judge thus determines the intention of the testator he should inquire whether there is any rule of law whichprevents effect being given to it. 17 I approve of the approach of Mr. Justice Krever in Re Crawley (1976), (ON SC), 68 D.L.R. (3d) 193 which is notinconsistent with the previous authority to which I referred.

Krever J. stated at 195: As to the particular language used by the testator, the following propositions are, in my view, so well established that they need nocitation of authority to support them: 1. A fair and literal meaning should be given to the actual language of the will; 2. An opinion as to the meaning should be formed first without regard to the cases, which would afterwards be looked at to seeif modification of the opinion is required; 3. The ordinary and grammatical sense of the words should be assigned; 4.

The words should be given the meaning that was intended by the testator, in view of the context and the surroundingcircumstances; 5. A natural and ordinary meaning should be given in preference to a secondary meaning. [65] The simple application of these principles to the provision in question leads to the

interpretation that the testator intended tofavour those expressly named in clause 5, but only if they outlived her. If one predeceased her that share would instead go to theremaining parties. [66] Even if a court were to find there was ambiguity in the clause and had in the alternative to resort to outside evidence ofintention (see Re Murray Estate, 2001 NSCA 25), then the evidence provided through the solicitor here would serve to confirm thisoutcome was in fact in accordance with the testators express wishes.

I emphasize there is no ambiguity in the clause, and I raise this onlyto make the point that even if this were not the case the analysis brings us to the same point. [67] Accordingly, the intention is clear, the operation of the clause is unambiguous, and the law is easily applicable. There is norealistic possibility Mr. McCallum could succeed in challenging the execution,

interpretation or effect of Ms. Langille’s Will. Conclusion

[ 68 ] I indicated a few minutes ago that I was assisted in my application of the

summary judgment test in these circumstances by the manner in which Justice Farrar proceeded through the steps in HRM v. Annapolis Group Inc ., supra. [ 69 ] I am drawn to the clarity of the following statement from Justice Farrar at paragraph 101 of the decision where he said the following: Where there is but one outcome based on the law and uncontested facts,

summary judgment should follow. [ 70 ] This is clearly the case here as well. Mr. McCallum’s position in this matter is unsustainable. The fact that his spouse hoped her mother would choose to favour Mr. McCallum after her death is of no legal consequence. Mr. MacCallum has framed it as a moral issue. Reasonable people could I suppose take differing positions on that. But in any event, it is not a position that has any prospect of success at law. The law requires that clearly unmeritorious claims be dealt with at the

summary judgment stage. [ 71 ] Accordingly, the motion of the Estate seeking

summary judgment is granted. I am not required in the circumstances to determine the standing issue as this would be moot in any event. [ 72 ] The Application filed by Mr. McCallum is dismissed and an order will issue accordingly. I would ask that the Estate draw that order. [ 73 ] I assume there may be a desire to address an issue of costs. J.