Cathy Best Plaintiff And: Marie Hendry First Defendant And: James E. G. Vavasour Second Defendant AND: MARIE HENDRY Third party, 2018 NLSC 214

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Best v. Hendry , 2018 NLSC 214 Date : October 25, 2018 Docket : 201301G4452 Between: Cathy Best Plaintiff And: Marie Hendry First Defendant And: James E. G. Vavasour Second Defendant AND: MARIE HENDRY Third party Before: Justice Sandra R. Chaytor Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: February 14-15, 2018

Appearances: Robert R. Regular and Sarah J. Clarke Appearing on behalf of the Plaintiff Cletus E. Flaherty Appearing on behalf of the First Defendant and Third Party R. Barry Learmonth, QC Appearing on behalf of the Second Defendant Authorities Cited: CASES CONSIDERED: Humby Enterprises Ltd. v. A.L. Stuckless & Sons Ltd., 2003 NLCA 20; Butler v. Kloster Cruise Ltd. (1992), (NL SC), 98 Nfld. & P.E.I.R. 138, 33 A.C.W.S. (3d) 695 (Nfld. S.C.T.D.); Petten v. E.Y.E. Marine Consultants(1994), (NL SC), 120 Nfld. & P.E.I.R. 313, 373 A.P.R. 313 (Nfld. S.C.T.D.); Hurley v.

Slate Ventures Inc. (1998), (NL CA), 167 Nfld. & P.E.I.R. 1, 82 A.C.W.S. (3d) 279 (Nfld. C.A.); Pittman v. Manufacturers Life Insurance Co.(1993), (NL CA), 106 D.L.R. (4th) 696, 111 Nfld. & P.E.I.R. 135 (Nfld. C.A.); Lyttle Estate (Re), 2013 NLTD(G)182; Directors of London & South Western R. Co. v. Blackmore (1870), L.R. 4 H.L. 610; White, Fluhman and Eddy v. Central TrustCompany and Smith Estate (1984), (NB CA), 7 D.L.R. (4th) 236, 25 A.C.W.S. (2d) 258 (N.B. C.A.). STATUTES CONSIDERED: Wills Act, R.S.N.L. 1990, c.

W-10; Substitute Decisions Act, 1992, S.O. 1992, c. 30; Wills, Estates andSuccession Act, S.B.C. 2009, c. 13. RULES CONSIDERED: Rules of Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D. TEXTS CONSIDERED: James MacKenzie, Feeney’s Canadian Law of Wills, 4th ed. (Toronto: LexisNexis, 2000). REASONS FOR JUDGMENT Chaytor, J.: INTRODUCTION AND BACKGROUND [1] This is yet another tale of family members falling out over inheritances. It also provides a cautionary reminder to lawyers ofthe danger inherent in acting as the executor and trustee of estates.

Cathy Best (“Best”) claims she is entitled to the whole estate of PearlPenney. Marie Hendry (“Hendry”) disagrees, saying that she and Best, based on a proposal by lawyer James Vavasour (“Vavasour”),Executor of Penney's estate, reached and carried out an agreement on how the estate should be distributed. [2] Best and Hendry are sisters. They were also nieces of the late Pearl Penney (“Penney”) who died on August 29, 2011. Penneywas predeceased by her husband, Bertram Penney.

Penney had executed a Last Will and Testament on November 23, 1981 (“the Will”)in which she named Best and Hendry as beneficiaries and Vavasour as Executor. The Will, drafted by Vavasour, made a specific bequestto Hendry of Penney’s residential property located at St. Michael’s Avenue in St. John’s, NL (“the House”) and named Best as theresidual beneficiary.

At the time of making the Will, the House constituted the main asset and the bulk of her estate. [3] Clause 4 of Will states as follows: If my husband, Bertram Penney, should survive me for a period of thirty (30) days after my decease, I give devise and bequeath myhome and its contents situate on St. Michael’s Avenue in the City of St. John’s, in the Province of Newfoundland and Labrador, to mysaid husband, Bertram, to be his during his lifetime, or until such time as he should re-marry, whichever event shall first occur, and on

the event of his death or re-marriage whichever shall first occur I give, devise and bequeath my home and its contents situate on St. Michael’s Avenue, aforesaid, to my neice (sic), Marie Hendry, to be hers absolutely. If my husband, Bertram, should predecease me or surviving me die within a period of thirty (30) days I immediately give, devise and bequeath my home and its contents situate on St.

Michael’s Avenue, aforesaid to my neice (sic), Marie Hendry, to be hers absolutely. [ 4 ] Clause 5 states as follows: I give, devise and bequeath all the rest, residue and remainder of my property of every kind whatsoever and wheresoever situate unto my neice (sic), Cathy Halfyard [1] to be hers absolutely. [ 5 ] Prior to Penney’s death, she was diagnosed with dementia, and she was placed in a long-term care facility. On September 8, 2008, Letters of Guardianship of her Estate and Effects were granted to Best. Hendry consented to the appointment of Best as Guardian.

On December 16, 2008, Best, in her capacity as Guardian, sold the House. Hendry was aware that the House was being sold and assisted in preparing the House for sale. [ 6 ] Letters of Probate of Penney’s estate were issued out of this Court on September 23, 2011, appointing Vavasour as Executor. Vavasour met with Best and Hendry on two occasions: September 18, 2012 and October 2, 2012. During the first meeting, he discussed a proposed distribution of the estate in which Hendry would receive a sum of money equal to the proceeds of the sale of the House ($145,780.40) and Best would receive the residue ($30,238.77).

Vavasour told them he believed it was the intention of their aunt that Hendry would receive the bulk of the estate. He encouraged the sisters to seek independent legal advice, and he set the next meeting with them for two weeks’ time to allow them an opportunity to do so. [ 7 ] Best was not happy with the proposed division and Hendry acknowledged she was aware of her sister’s discontent. After leaving Vavasour’s office, the sisters had a discussion whereby Hendry offered to pay Best an additional $40,000 out of her share of the proposed proceeds.

Best testified that she agreed with this and on that basis did not seek legal advice. Neither sister sought legal advice. They returned, as scheduled, for the second meeting at Vavasour’s office. They did not disclose to Vavasour their discussion with respect to the additional $40,000. The estate and effects of Penney were distributed between Best and Hendry as per Vavasour’s proposal, and they signed a release.

Hendry was given a cheque for a sum of money equating to the net proceeds of the sale of the House and Best was advanced the residue of the estate. [ 8 ] Hendry did not pay Best the additional $40,000 although she testified that she fully intended to do so. In fact, at one point, she had obtained a bank draft for $30,000 to give to her sister, and during a visit with Best, she planned to give it to her but they had an argument during the visit and therefore Hendry did not give Best the money.

Both Hendry and Best testified that prior to that visit, Best had agreed to accept $30,000. [ 9 ] Subsequently, Best received legal advice to the effect that she believed she should have received the entirety of the estate as the House had been sold at the time of Penney’s death and therefore the specific gift to Hendry had failed.

She then commenced this action claiming the entirety of the estate. [ 10 ] Hendry disputes Best’s claim on the basis that she and Best settled their respective entitlements to the estate by agreeing to the proposal put forward by Vavasour and denies any responsibility to indemnify Best. Vavasour’s position is that at all times in dealing with Best and Hendry, he was acting in his capacity as Executor of the estate and not as their solicitor. He denies any negligence on his part.

In the event that Best is successful in her action against him, he has commenced a Third Party action against Hendry seeking contribution and indemnity and that Hendry be ordered to refund any overpayment she received. PRELIMINARY ISSUE – ADEQUACY OF PLEADINGS AND END OF TRIAL AMENDMENT TO PLEADINGS [ 11 ] An issue arose during final submissions as to whether Best could advance an alternative claim based in contract for the $40,000. This case is a textbook example of the difficulties that are caused by deficient pleadings.

Best commenced this action claiming the whole estate but in closing submissions, her counsel put forward the alternative argument that there was an enforceable agreement between Best and Hendry for $40,000. Best submits that the Statement of Claim, as drafted, is sufficiently broad to include this claim or alternatively an amendment should be granted to allow the alternative claim to be adjudicated. [ 12 ] Hendry took issue with the alternative claim being advanced in that it had not been articulated in the pleadings, nor had she received any notice of it until it arose in final argument by Best’s counsel.

I allowed the parties the opportunity to file post-trial briefs to address the issue of whether the statement of claim was sufficiently broad to cover the alternative claim based in contract for the $40,000, and, if not, whether the pleadings could be amended, at this stage, to allow the claim to be advanced. [ 13 ] I will deal first with whether the Statement of Claim, as filed, is sufficient to cover the claim based in contract. [ 14 ] The Newfoundland and Labrador Court of Appeal has on many occasions reiterated the importance of specificity in pleadings so as to allow opposing parties to know the case that has to be met. [ 15 ] In Humby Enterprises Ltd. v.

A.L. Stuckless & Sons Ltd. , 2003 NLCA 20 , the Court of Appeal stated, at paragraph 16: 16. … [material facts] are necessary to enable the defendant to know the nature of the case to be met; to prevent the defendant from being taken by surprise at the trial; to enable the defendant to know what evidence it ought to be prepared to present; and to limit and define the issues to be tried and as to which discovery is required. [ 16 ] This case is rare in that the issue of whether the pleadings are sufficient is arising at the end of trial after the evidence has concluded.

There is no doubt that the pleadings in this case are broad and vague. The Statement of Claim, in fact, fails to articulate any cause of action against Hendry, but it is clear from a reading of the Statement of Claim, as a whole, that Best was seeking the entire estate

based on the specific bequest to Hendry having adeemed. [17] Paragraph 9 the Statement of Claim states: The Plaintiff further claims that she recently learned that had the Last Will and Testament had (sic) been interpreted and probatedproperly and in accordance with the law she would have received all the monies given to the First Defendant by the Second Defendant. [18] Paragraph 10 of the Statement of Claim states: The Plaintiff claims that the First Defendant owes to her the monies advanced to her by the Second Defendant from the Estate of PearlMarie Penney. [19] There is no mention in the Statement of Claim of seeking less than the full amount paid to Hendry, nor any basis in the factsalleged of a claim for breach of contract.

I conclude that the Statement of Claim, as filed, is not sufficient to include the claim based incontract for the $40,000. As such, if Best is to be permitted to advance this claim, an amendment is required to the pleading. I now turnto whether such an amendment at this stage should be granted. [20] Rule 15.02 of the Rules of Supreme Court, 1986, S.N.L. 1986, c. 42, Sch.

D., as amended, allows an amendment to pleadings atany time with leave of the Court on such terms as it thinks just, including to add a new cause of action if it arises out of substantially thesame facts as the original cause of action. [21] Rule 15.02 states: 15.02.

(1) If an amendment does not include the addition, deletion, substitution or correction of the name of a party to a proceeding, aparty may amend a pleading filed by that party other than an order: (

a) once without the leave of the Court if the amendment is made not later than 20 days from the date the pleadings are deemed to beclosed or 5 days before the hearing under an originating document; (

b) at any time with the written consent of all of the parties filed with the Court; or (

c) at any time with leave of the Court on such terms as it thinks just.

(2) The Court may allow an amendment notwithstanding the effect of the amendment will be to add or substitute a new cause of action,if the new cause of action arises out of the same or substantially the same facts as the original cause of action. [22] In Butler v. Kloster Cruise Ltd. (1992), (NL SC), 98 Nfld. & P.E.I.R. 138, 33 A.C.W.S. (3d) 695 (Nfld.S.C.T.D.), Russell, J. at paragraph 12 set out the test for an amendment to be allowed.

The proposed amendment, “… (1) must not causeinjustice to the other side, (2) must raise a triable issue, (3) must not be embarrassing, and (4) must be pleaded with particularity.” [23] In Petten v. E.Y.E. Marine Consultants (1994), (NL SC), 120 Nfld. & P.E.I.R. 313, 373 A.P.R. 313 (Nfld.S.C.T.D.), amendments to pleadings were allowed during the course of the trial. In doing so, the Court noted at paragraph 179 thatalthough Rule 15.02(1) must be given a broad and liberal

interpretation to ensure that the real matter in controversy between the partiesis properly before the Court, this must be done without non-compensable prejudice to the other side. [24] At paragraph 90, the Court in Petten emphasized that the primary determinant of the issue will be an assessment of thepotential injustice to the other side if the amendment were to be granted. [25] In this case, I am satisfied that the amendment would raise a triable issue as to whether there was a contract between Best andHendry and whether there was a breach of that contract.

I also conclude that the amendment would not be embarrassing. For the reasonsthat follow, however, I cannot conclude that the proposed amendment meets the other two requirements of the test: that it is sufficientlyparticular, or that it can be made without non-compensable prejudice to Hendry. [26] A high degree of particularity is required at this late stage of seeking an amendment. Best has not brought a formal applicationoutlining the proposed amended pleading.

In her post-trial brief, she states that the cause of action for breach of contract is grounded inthe evidence and that the agreement between her and Hendry was that Best would not seek independent legal advice with respect toVavasour’s proposal if Hendry paid her the additional $40,000. For her part, Hendry denies her offer to Best was anything more than asisterly gesture to assist her as she knew Best was not happy with the proposal.

Hendry challenges the specificity of the considerationallegedly flowing such as, for example, whether it was intended to release her from any and all claims relating to the estate fundsincluding indemnity against third party claims. Insofar as this issue, and potentially others, was not addressed in the evidence, relying onthe evidence to ground the application causes concern as to the sufficiency of the particulars of the proposed amendment. [27] More importantly, I cannot conclude that there would be no injustice to Hendry, which could be compensated in costs, if theamendment were allowed.

Hendry had no notice prior to the commencement of the trial that she was to prepare to defend a claim on thebasis of breach of contract. The Statement of Claim was silent on this and Best’s trial brief indicated that her claim for relief was basedupon unjust enrichment founded on Best’s claim to the entire estate.

[28] In Hurley v. Slate Ventures Inc. (1998), (NL CA), 167 Nfld. & P.E.I.R. 1, 82 A.C.W.S. (3d) 279, (Nfld.C.A.), the majority of the Court of Appeal upheld the trial judge’s decision to allow a remedy that had not been claimed in the Statementof Claim. It is noted that in that case, unlike this case where the amendment required would involve a new cause of action, theamendment in Hurley was for a claim for relief grounded in the same factual basis of the pleadings.

In this case, although the allegedcontract between Hendry and Best arises out of their discussions surrounding the distribution of Penney’s estate, it cannot be said that theaction in contract would be based upon substantially the same factual matrix as the action that Best chose to put before the Court in whichshe has sought the entirety of the estate grounded in negligence based upon an alleged improper

interpretation of the law. [29] In Hurley, the Court of Appeal acknowledged that the amendment would only be permitted in exceptional cases and that, thegeneral rule, that relief unrequested by the pleadings may not be granted was beyond dispute and lies “firmly implanted in the law”(paragraphs 66-70). In reaching its decision, the Court of Appeal emphasized the importance of justice to the other side in terms of noticeof the relief being sought.

The function of pleadings, being, of course, to give fair notice to an opposing party to enable the party toanticipate the need of directing evidence towards specific issues. In Hurley, the Court of Appeal found that Slate Ventures Inc. had pre-trial notice of the alternative remedy sought by Mr. Hurley through both an interlocutory proceeding and by way of Mr. Hurley’s pre-trial brief. [30] Such notice cannot be said to have been given in this case.

Although the issue of the $40,000 was canvassed, to a degree, inthe evidence of both Best and Hendry, I am unable to conclude that Hendry would have been aware during the evidence that the purposein Best leading this evidence would be to raise an alternative cause of action based in contract. Although the Statement of Claim failed toarticulate any cause of action against Hendry, it was clear that in bringing this action, Best was seeking the entire inheritance on thegrounds that the gift to Hendry had adeemed. During trial, Best’s evidence did nothing to disavow this understanding.

In fact, sheconfirmed that she was seeking the entire proceeds of the estate and not the $40,000. She testified that while she had been prepared toaccept the $40,000 at one point, it was no longer enough. [31] By raising the cause of action based in contract for the first time during closing submissions, Hendry was deprived of theability to prepare and present a defence to a cause of action based in contract.

Further, without making it clear that this was the intentduring the trial, Hendry lost the opportunity to fully flesh out the details of the claim of breach of contract against her and to fully defendon that basis. [32] The key issue is whether the amendment can be made without non-compensable prejudice to Hendry. I cannot so conclude.Therefore, an amendment to the Statement of Claim to advance a cause of action in contract is not allowed. [33] In Pittman v. Manufacturers Life Insurance Co. (1993), (NL CA), 106 D.L.R. (4th) 696, 111 Nfld. &P.E.I.R. 135 (Nfld.

C.A.), the Court dealt with the issue of contribution and indemnity between two defendants which had not been raisedin the pleadings.

At paragraph 23, Mifflin, J.A. wrote that the issue, “… should be resolved in a separate action, not a continuation of anaction in which it was not pleaded, in which the several defences available to the Shipyard could be raised on the pleadings and anyadditional facts bearing thereon could be heard, and the law relating thereto argued by counsel and dealt with by the Court.” [34] Best may have an action against Hendry based in contract for the non-payment of the $40,000, but that cause of action cannotbe fairly determined in this action.

Any additional evidence and law relating to that cause of action is better heard in a separate action inwhich both parties have an opportunity to fully explore the issue and present their positions. ISSUES 1. Is the bequest of the House to Hendry subject to ademption? 2. Is Best entitled to the whole of the estate (including the proceeds from the sale of the House), or was the distribution of the estatesettled by agreement between Best and Hendry? If not, is Best entitled to any portion of the estate apart from the residue? 3. Does Best have a claim for damages against Vavasour? 4.

If so, may Vavasour recover all, or a part, of that claim in his Third Party action against Hendry? ANALYSIS Issue 1: Is the bequest of the House to Hendry subject to ademption? [35] The bequest of the House to Hendry was a specific legacy. The rule of law is that if at a testator’s death, the specific propertyof a bequest is not found among the testator’s assets, the gift fails. It is said to adeem (James MacKenzie, Feeney’s Canadian Law ofWills, 4th ed. (Toronto: LexisNexis, 2000),

Chapter 15, page 1). [36] Ademption is an old common law doctrine which can be harsh in its application. Some jurisdictions have enacted legislation toavoid the potential injustice that can result with its strict application and specifically to address the issue of someone other than thetestator disposing of the testator’s property. Such legislation alters the common law regarding ademption so that the remaining proceedsof the sale of the specific gift, to the extent possible, is given to the intended beneficiary of that gift.

For example, Ontario addressed thissituation in the Substitute Decisions Act, 1992, S.O. 1992, c. 30. In British Columbia, the issue was addressed through subsections 48(2)and 48(3) of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13, which state: 48(2) If property that is the subject of a gift in a will is disposed of by a nominee, the beneficiary of the gift is entitled to receive from thewill-maker’s estate an amount equivalent to the proceeds of the gift as if the Will had contained a specific gift to the beneficiary of thatamount.

48(3) Subsection (2) does not apply if: (

a) The disposition is made to carry out instructions given by the will-maker at the time when the will-maker was legally capable of giving instructions, or (

b) A contrary intention appears in the will. [ 37 ] Counsel were unable to identify a case similar in fact to this one. Most ademption cases, unlike the case at bar, concern the disposition of the property by the testator during his or her lifetime or at the direction of the testator. A recent example of this is found in the case Lyttle Estate (Re) , 2013 NLTD(G) 182. One of the issues considered by the Court in that case was the bequest of a Jaguar motor vehicle which had been sold by the intended beneficiary shortly before the testator’s death. Handrigan, J. reviewed

Section 15 of the Wills Act , R.S.N.L. 1990 c. W-10, and concluded that the gift of the Jaguar had adeemed. At paragraph 50, he writes: The Jaguar did not belong to Ms. Lyttle’s estate when she died. Mr. Smith sold it twelve days earlier, at her direction and request, and on her behalf. Thus, [Ms.] Lyttle’s will may only be construed as to the property she owned when she died because no contrary intention appears by her will. The intended bequest of the Jaguar in kind to Mr. Smith fails. ... [ 38 ] Penney made a specific bequest of the House to Hendry.

At the time of doing so, the House was the main asset of the estate. It was not sold by her during her lifetime or at her direction. Rather, Best, the residual beneficiary, sold the House within four months of having been appointed Guardian of Penney’s estate. Hendry and Vavasour both took issue with the decision to sell the House at that point in time as the proceeds were not necessary for the maintenance of Penney as there were other funds available in her bank account.

For her part, Best submitted that she sold the House on the advice of legal counsel as there had been concerns regarding its maintenance and issues with vandalism. Hendry acknowledges that she and Best discussed the sale of the House and she thought it was a good idea. There is no indication that either sister realized the potential effect of selling the house upon the specific gift to Hendry under the Will. [ 39 ] The specifically devised property was not disposed of by

an act of Penney, but rather as a result of the actions of Best as Guardian of her estate. Although Best had the legal capacity to sell the House, the transaction was not done with the knowledge and consent of Penney.

Although I cannot conclude that there was anything untoward in Best’s motivation in selling the House or that the sale was intended to defeat the specific gift to Hendry, if ademption is applied strictly, the sale would result in the thwarting of the intention of Penney and the enrichment of Best, in her capacity as residuary beneficiary, at the expense of Hendry, the intended primary beneficiary. [ 40 ] In my view, the unique circumstances of this case make it appropriate to carve out a narrow exception to the strict application of the doctrine of ademption.

The doctrine of ademption should not apply in cases, such as this, where: 1. The intended primary beneficiary of the estate would be deprived of any benefit under the estate if the doctrine were applied strictly; 2. The specific gift was disposed of, not by the testator or with the knowledge or consent of the testator, but by another beneficiary of the estate who would benefit from the gift adeeming; and 3.

The proceeds, or a portion thereof, of the disposition of the specific gift may still be found in the estate and available for distribution. [ 41 ] In any event, a decision on the applicability of ademption is not necessary for the disposition of this dispute. As discussed below, I am satisfied that the parties agreed to put aside their respective claims to entitlement under the Will, whatever those entitlements may have been, and to accept the distribution agreement as proposed by Vavasour.

Issue 2: Is Best entitled to the whole of the estate (including the proceeds from the sale of the House), or was the distribution of the estate settled by agreement between Best and Hendry? If not, is Best entitled to any portion of the estate apart from the residue? [ 42 ] The evidence of both Best and Hendry is that although they were provided an opportunity to receive independent legal advice with respect to the distribution of the estate, they chose not to do so and instead agreed that they would accept the division as proposed by Vavasour.

They attended at Vavasour’s office after the two-week interval provided to them to obtain legal advice, and without such advice, accepted the cheques as per the proposal and executed a release in favour of Vavasour as the Executor of the estate. [ 43 ] Best and Hendry agreed to the distribution proposed by Vavasour as a settlement of their respective claims to entitlement under the Will. Best is therefore only entitled to have the estate distributed in accordance with that agreement.

Best has received that entitlement; but in so concluding, I wish to make it clear that I am considering the agreement only in the context of its formation and existence being a good defence to any claim Best may make – as she has here – to the entirety of the estate. I have in no sense considered the agreement in the context of the delineation or enforceability of one or more of its terms.

Specifically – and I earlier disallowed an amendment to the pleadings in this proceeding to this effect – I have made no adjudication of Best’s claim that she is entitled to a further $40,000 from Hendry either because of a term in the settlement agreement or as a term of a separate agreement. This decision does not prejudice any right Best may have to bring a separate action, if she so chooses, with respect to the $40,000.

Issue 3: Does Best have a claim for damages against Vavasour? [44] There is no evidence from which I can conclude that in his capacity as Executor for the estate, or as solicitor for the estate,Vavasour’s actions fell below the standard expected of an executor or solicitor. [45] In his capacity as Executor, Vavasour proposed a resolution that he reasonably believed was in keeping with the intentions ofPenney.

I accept his evidence that he did not tell Best or Hendry that the proposal was how it had to be pursuant to the law, and thatinstead he framed it as a proposal based upon what he thought were the wishes of Penney. The division he proposed was just that—aproposal that they were free to accept or reject. He recommended that Best and Hendry receive independent legal advice and providedthem with a reasonable time period in which to do so.

They declined to do so and both chose not to disclose to him that Best had anydissatisfaction with the proposal or that they had discussed a further payment to Best from Hendry. [46] Vavasour’s proposal was reasonable in the circumstances and accepted by Best and Hendry after having been provided anopportunity to obtain independent legal advice. I find no breach of duty on the part of Vavasour either as Executor of the estate or in hiscapacity as lawyer for the estate.

Therefore there is no basis for the claim against him. [47] In any event, the release signed by Best provides a full defence to any claim by Best against Vavasour in his capacity asExecutor. [48] The Release, which was signed by both Best and Hendry and witnessed by Vavasour, simply stated: IN THE ESTATE of Pearl Penney, late of St. John’s in the Province of Newfoundland and Labrador RELEASE We, Marie Hendry and Kathy Best, beneficiaries of the Estate of the late Pearl Penney, hereby release and discharge the Executor, JamesE.G. Vavasour, from any further obligation, liability or claim by us on our behalf.

Dated at St. John’s, in the Province of Newfoundland and Labrador, this 2nd day of October 2012. [49] In Directors of London & South Western R. Co. v. Blackmore (1870), L.R. 4 H.L. 610 at p. 623, Lord Westbury stated: The general words in a release are limited always to that thing or those things which were specially in the contemplation of the parties atthe time when the release was given. [50] In White, Fluhman and Eddy v. Central Trust Company and Smith Estate (1984), (NB CA), 7 D.L.R. (4th)236, 25 A.C.W.S. (2d) 258 (N.B.

C.A.), the New Brunswick Court of Appeal noted at paragraph 33 that in determining what iscontemplated by the parties executing a release, the words used in the document need not be looked at in a vacuum, but instead: … The specific context in which a document was executed may well assist in understanding the words used. It is perfectly proper, andindeed may be necessary, to look at the surrounding circumstances in order to ascertain what the parties were really contracting about. [51] Vavasour mentioned the release at the first meeting.

His handwritten notes on the document given to Best and Hendry that daystated: “release” and “2 weeks”. I accept his evidence that he intentionally kept the release short and the language simple. [52] Hendry described that Vavasour read the release to them in the second meeting. She understood that once they signed, neithershe nor Best could “go after” Vavasour. Best is not an unsophisticated party. She is better educated than Hendry having completed post-secondary education in clerical studies at College of North Atlantic.

She has been employed as the office manager in a physician’s officefor 15 years and previously worked for a life insurance company. [53] Best admitted in her evidence that she signed the release freely and voluntarily and understood by signing the release, she wasreleasing Vavasour from his obligations as the Executor of the estate. She did not, however, accept that this meant she could not bring aclaim against Vavasour.

I do not accept that Best did not understand, as her sister did, that in executing the release, she would bereleasing Vavasour from future claims as to the distribution of the estate. [54] There is no claim by the estate against Vavasour in his capacity as solicitor for the estate, nor is there evidence from which Icould conclude that Vavasour had a solicitor-client relationship with Best in her capacity as a beneficiary.

Indeed, Vavasour’s entreatiesto the beneficiaries to seek legal advice would indicate otherwise. [55] I can find no basis for the claim against Vavasour and therefore the action against him is dismissed. Issue 4: May Vavasour recover all, or a part, of Best’s claim in his Third Party action against Hendry? [56] As I have found no basis for the claim against Vavasour, there can be no claim for contribution and indemnity, or recoveryotherwise, against Hendry. The Third Party action is dismissed.

SUMMARY AND DISPOSITION 1. The amendment to the Statement of Claim is not allowed; 2. The main action against Hendry is dismissed with costs payable to her by Best on column 3 of the scale of costs; 3. The action against Vavasour is dismissed with costs payable to him by Best on column 3; and 4. The Third Party action is dismissed. Hendry shall have her costs of defending the Third Party action against Vavasour on column 3. _____________________________ Sandra R. Chaytor Justice