GARY ROBERT LONDON Applicant - v. -, 2023 NBKB 189

Citation: 2023 NBKB 189 File Number: SJP-159-2020 IN THE PROBATE COURT OF NEW BRUNSWICK JUDICIAL DISTRICT OF SAINT JOHN BETWEEN: GARY ROBERT LONDON Applicant - and - DEBORAH MAE LONDON, EXECUTOR OF THE ESTATE OF TRUEMAN LAWRENCE LONDON Respondent BEFORE: Justice William T. Grant HEARING HELD: Saint John DATES OF HEARING: October 23, 2023 DATE OF ORAL DECISION: October 23, 2023 COUNSEL: Patrick Delaney, for the Applicant Chelsea Seale, for the Respondent DECISION GRANT J. (orally) [ 1 ] In this Motion the Applicant raises two issues. He requests:

a) a full accounting of the Estate of the Executor, Deborah London and;

b) that the Letters Probate issued to Deborah London be revoked and she be required to prove the memorandum dated March 17 th , 2020 that was probated with the Will, dated November 15 th , 2018 in solemn form. [ 2 ] As a preliminary matter, the parties have asked for a ruling on whether or not they reached a binding settlement concerning the accounting, the memorandum, and the partition of the land owned in part by the deceased, Trueman London, at the time of his death. [ 3 ] On September 27 th , 2022 they appeared before Justice Morrison on the Application out of which this Motion stems.

At that time they held discussions and returned to Court to advise Justice Morrison about what they had agreed to concerning the three issues. [ 4 ] Gary London’s lawyer, Stephen Horgan, deferred to Deborah London’s lawyer, Chelsea Seale, to speak to the Court on the issues. [ 5 ] Ms.

Seale told the Court they had worked out the mechanisms for the partition of the land and that they had agreed to the fractions each family member would get on the assumption that title was still vested in some family members who are not beneficiaries of Trueman London’s Estate, that they had agreed on particular lots for three of the siblings and that they discussed holding a lottery to determine which lot each of the others would get. [ 6 ] She also advised the Court that Ms. London agreed to provide an updated accounting and that the claims concerning the items mentioned in the memorandum were “relinquished”.

I infer that to mean that Gary London agreed to abandon any claim to those items. [ 7 ] Mr. London submits that this was nothing more than an agreement to agree and therefore not a binding settlement between the parties. He further submits that the three issues, viz. the accounting, the memorandum, and the partition of the land, were all pillars of the proposed agreement and the failure of one meant the failure of the whole agreement. [ 8 ] I don’t agree. Firstly, the executor has a legal obligation to account so the resolution of that issue was not contingent on her consent.

The memorandum is also not inextricably related to the land, which is an issue that goes beyond the boundaries of the estate because it includes the interests of persons who are not beneficiaries of the estate of Trueman London. [ 9 ] To say that the land issue had to be resolved or the agreement concerning estate issues upon which the beneficiaries had agreed would be null and void would give power over the estate to persons that the testator clearly had no intention to empower. [ 10 ] Moreover, there is nothing in the Record before the Court to indicate that the issues were inextricably intertwined such that if one issue unraveled the rest of the agreement was null and void. [ 11 ] Finally, while Mr.

London’s lawyer at the hearing made submissions about the accounting issue following Ms. Seale’s submissions, he did not address the other two issues and must therefore be taken to have agreed with her submissions. [ 12 ] I therefore find that the issues resolved in the settlement were separate and the resolution of each one was not contingent on the resolution of both of the others. [ 13 ] As for the issues themselves, I find that the dispute concerning the memorandum was clearly resolved as set out in Ms.

Seale’s submissions as was the issue of the accounting. [ 14 ] Consequently, I allow the first prayer for relief in the Motion and order Ms. London to provide Mr. London with an updated accounting, to and including, October 31 st , 2023. That accounting is to be provided on or before December 15 th , 2023.

[ 15 ] Gary London’s second prayer for relief, i.e., proof in solemn form of the memorandum, is denied based on the agreement reached by the parties on September 27 th , 2022. I further order that the Clerk of the Probate Court return the Letters Probate to Ms. London that she deposited with the Court pursuant to a Citation which I signed dated June 28 th , 2023. [ 16 ] I encourage the parties to continue to work on resolving the partition of the land as continuing to deal with that issue through the Court will be exorbitantly expensive.

COSTS [ 17 ] Costs of both parties will be payable by the estate. ________________________________________________ William T. Grant Judge of the Court of King’s Bench of New Brunswick