VICTORIA HOLLY FRANCES SCOTT APPELLANT AND: KATHLEEN RUTH FLORENCE SCOTT RESPONDENT, 2022 NLCA 61

IN THE COURT OF APPEAL OF NEWFOUNDLAND AND LABRADOR Citation: Scott v. Scott, 2022 NLCA 61 Date: November 10, 2022 Docket Number: 202201H0011 BETWEEN: VICTORIA HOLLY FRANCES SCOTT APPELLANT AND: KATHLEEN RUTH FLORENCE SCOTT RESPONDENT Coram: Welsh, Hoegg and O’Brien JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador, General Division 201901G5952 (2022 NLSC 11) Appeal Heard: September 26, 2022 Judgment Rendered: November 10, 2022 Reasons for Judgment by: Welsh and Hoegg JJ.A. Concurred in by: O’Brien J.A.

Counsel for the Appellant: Self-represented Counsel for the Respondent: Alexandra Kindervater Authorities Cited: CASES CITED: Vout v. Hay, (SCC), [1995] 2 S.C.R. 876; Tataryn v. Tataryn Estate, (SCC), [1994]2 S.C.R. 807; Dicks v. Dicks Estate, 2010 NLCA 35, 298 Nfld. & P.E.I.R. 1; Letterstedt v. Broers (1884), 9 App. Cas. 371, [1881-5] All

E.R. Rep 882 (South Africa P.C.); Miles v. Vince, 2014 BCCA 289, [2014] 9 W.W.R. 1; 909403 Ontario Ltd. v. DiMichele, 2014 ONCA261; Sinclair v. Sinclair, 2013 SKCA 123, 370 D.L.R. (4th) 214; Melendy v. Drodge, 2017 NLCA 46, 2 C.A.N.L.R. 114; Elton Estate v.Elton, 2010 NLCA 2, 292 Nfld. & P.E.I.R. 237; Fleming Estate, Re, 2006 NLTD 112, 258 Nfld. & P.E.I.R. 340. Welsh and Hoegg JJ.A.: [1] Kathleen Scott applied for letters of probate of her father’s Last Will and Testament and appointment as the sole executor.

Victoria Scott, Kathleen’s sister, opposed Kathleen’s application, arguing that solemn proof of the Will was required, and that she shouldbe appointed the sole executor. The applications judge granted Kathleen’s application, ordered the issuance of letters of probate to her,approved her as the sole executor, and removed Victoria as an executor under the Will. Victoria appeals that order. BACKGROUND [2] The testator, John Scott, executed a Last Will and Testament on August 30, 2016. He died on September 28, 2016 at the ageof 85. The judge accepted that Mr.

Scott had been married to Kay Scott for approximately thirty years, a finding which Victoria does notaccept. Kathleen and Victoria are children of their father’s previous marriage. In the Will, Mr. Scott named Kay as the executor withKathleen and Victoria as alternate executors. [3] On July 13, 2018, Kay Scott filed a petition for probate of Mr. Scott’s Will. However, on September 25, 2018, she withdrewher application and renounced her right to be appointed as executor. Under the Will, the contents of the house where Mr. Scott and Kaylived were bequeathed to Kay, along with a life interest to reside in the house.

Kay has not asserted any matrimonial or other right to thehouse, which she vacated in September 2018. The judge noted (2022 NLSC 11): [9] John Scott had other assets on his death that would have passed to his wife by operation of law, including a bank account heldjointly with Kay and benefits under a Memorial University faculty pension. [4] Under the Will, the remainder of the estate including the main asset, the house valued at approximately $400,000, wasbequeathed to Kathleen and Victoria.

Each sought to be appointed as sole executor of the Will. [5] The applications judge began his analysis with a review of the estate and consideration of what would be involved in itsadministration: [11] The estate is one of modest value. The type of assets in the estate are such that the tasks required to complete its administrationare simple. In the usual course, administering this estate would involve only (

i) selling the home, (ii) ascertaining and paying any debtsof the estate for income and property taxes and obtaining appropriate clearances from the taxing authorities, (iii) distributing half the netproceeds of sale to each of [Kathleen and Victoria], (iv) paying to [Kay] the amount in the bank account mentioned in the Will, and (v)arranging for the division by agreement [between Kathleen and Victoria] of the film and book collection. [6] Having considered the circumstances and the relevant law, the judge ordered that letters of probate would issue to Kathleenand that she would be the sole executor of the Will.

ISSUES [7] At issue in this appeal is whether the applications judge erred: (1) by ordering the issuance of letters of probate; and (2) byappointing Kathleen as the sole executor of the Will. ANALYSIS The Issuance of Letters of Probate [8] Victoria opposed the issuance of letters of probate on the basis that, in the circumstances, solemn proof of the Will wasrequired.

The applications judge considered the grounds for this position and determined that the Will had been proved in accordancewith the law: [15] ... [Victoria] says that her father’s death was suspicious, that the Will was changed only one month before his death to add abequest of money in a bank account and the granting of a life interest in the home to Kay Scott, and she alleges that Kay and John Scottmay never have been legally married. [16] These allegations do not come close to meeting the standard of evidence to require solemn proof of the Will. In Vout v.

Hay, (SCC), [1995] 2 S.C.R. 876, at paras. 25 and 26, the Supreme Court of Canada discussed the nature of evidence neededbefore a court will require solemn proof of a will. Once a person presenting a will for probate has demonstrated that the document wasduly executed with the requisite formalities, a rebuttable presumption arises that the testator had the necessary testamentary capacity andthat the will expressed the testator’s wishes.

A person who opposes the admission of the will to probate can ask that the court requiresolemn proof of the will by demonstrating suspicious circumstances around the preparation of the will, or that tend to call into questionthe capacity of the testator or that tend to show that the testator’s real wishes were overborne by coercion or fraud. ... [18] Victoria has not presented any evidence that shows suspicious circumstances. She relies only on conjecture and allegationregarding the cause of her father’s death, the change in his Will and the status of his marriage.

However, John Scott was an 85 year-oldman with a pacemaker and he died suddenly. He changed his Will about a month before his death, but that alone is not a suspicious

circumstance. The only changes from the previous Will alleged by Victoria were the inclusion in the later of a bequest to Kay, John’swife of 30 years, of the money in one bank account and the grant to her of a life interest in what was the matrimonial home. ... [19] Therefore, Victoria has not shown that there is a genuine issue that could displace the presumption of testamentary capacity andintent that arises from the proof of due execution filed with the Court in support of Kay’s original Application for Probate. The Will ofAugust 2016 is proven. [9] In Vout v.

Hay, (SCC), [1995] 2 S.C.R. 876, Sopinka J., for the Court, wrote that a valid will requires “thatthe testator knew and approved of the contents [of the will] and had the necessary testamentary capacity” (paragraph 26). Victoriasubmits that her father could not have satisfied these requirements because Kay could not be said to be his wife, the implication beingthat her father had been misled. To prove this proposition, Victoria relies on the fact that Kay has not produced a certificate of divorcefrom her first husband and a certificate of marriage to Mr. Scott.

Indeed, in response to questions from the applications judge, Victoriastated that she would not contest the Will if Kay produced those certificates. She takes the same position on this appeal. [10] The applications judge did not accept Victoria’s submission. Rather, he found as a fact that “John would have known of thefacts of [Kay’s first marriage] and he referred to Kay for over 30 years as his wife” (decision of the applications judge, at paragraph 18). Whether the legal steps of divorce and marriage had been completed is of no consequence.

There is no evidence, and no suggestion, thatthe testator was legally married to a person other than Kay when he died. [11] Further, Victoria’s submission that her father was misled about Kay’s marital status is also of no consequence. He had beenliving with Kay for many years. A testator is free to make bequests as he sees fit. (See Tataryn v. Tataryn Estate, (SCC), [1994] 2 S.C.R. 807, at page 814.) There was nothing prohibiting Mr. Scott from bequeathing property to Kay. [12] On the facts of this case, no issues have been raised that would limit Mr.

Scott’s testamentary autonomy to dispose of his estateas he chose, including bequests to Kay. [13] In

summary, the applications judge did not err in determining that letters of probate should issue based on his conclusions thatthe testator had the necessary testamentary capacity and knew and approved of the contents of the Will, and that no suspiciouscircumstances had been demonstrated to call into question the validity of the Will. Appointment of the Executor [14] The Will provided that, in the circumstance where Kay had renounced her right to be appointed as executor, “the testatorwanted both of his daughters [Kathleen and Victoria] to be his executors” (decision of the applications judge, at paragraph 20).

Whendisputes arose, each applied for appointment as the sole executor of the Will. [15] The beginning point in the analysis is that there must be good reason for removing an executor designated in a will (Dicks v.Dicks Estate, 2010 NLCA 35, 298 Nfld. & P.E.I.R. 1, leave to appeal refused, [2010] S.C.C.A. No. 281, at paragraphs 38 to 50). Inassessing whether the threshold for removal has been met, the principles discussed in Letterstedt v. Broers, (1884), L.R. 9 App.

Cas. 371(South Africa P.C.), have consistently been applied by Canadian courts, and remain the governing law respecting the removal ofexecutors. [16] In Broers, at page 385, Lord Blackburn referred to Story’s Equity Jurisprudence, Sect. 1287, which identified situationsjustifying removal of an executor: But in cases of positive misconduct, Courts of Equity have no difficulty in interposing to remove trustees who have abused their trust; itis not indeed every mistake or neglect of duty, or inaccuracy of conduct of trustees, which will induce Courts of Equity to adopt such acourse.

But the acts or omissions must be such as to endanger the trust property or to show a want of honesty, or a want of propercapacity to execute the duties, or a want of reasonable fidelity. [17] Lord Blackburn went on to say that an executor’s “principal duty [is] to see that the trusts are properly executed” and “[i]t mustalways be borne in mind that trustees exist for the benefit of those to whom the creator of the trust has given the trust estate.” LordBlackburn also stated that after questions of character have been addressed, if it appears clear that the continuance of the trustee wouldbe detrimental to the execution of the trust, a court might think it proper to remove him (page 386).

He went on to say, at page 387, that: In exercising so delicate a jurisdiction as that of removing trustees, their Lordships do not venture to lay down any general rule beyondthe very broad principle above enunciated, that their main guide must be the welfare of the beneficiaries. See also: Miles v. Vince, 2014 BCCA 289, [2014] 9 W.W.R. 1, at paragraph 85; 909403 Ontario Ltd. v. DiMichele, 2014 ONCA 261, atparagraph 84; Sinclair v.

Sinclair, 2013 SKCA 123, 370 D.L.R. (4th) 214, at paragraph 33; Fleming Estate, Re, 2006 NLTD 112, 258Nfld. & P.E.I.R. 340, at paragraph 12. [18] Applying Broers in Sinclair, supra, Richards C.J.S. referred to the fundamental consideration in removing an executor: [35] The parties agree the exercise of the judicial discretion to remove an executor is a sensitive one not to be undertaken lightly (see,for example, Figley [2012 SKCA 36], at para. 46 and Surminsky (Litigation Guardian of) v. Ulmer Estate, 2000 SKQB 209 (Sask.

Q.B.)at para. 2) and that the overriding duty of the Court is to ensure the trust will be properly executed and the main guide must be thewelfare of the beneficiaries. (Emphasis added.) See also: Miles v. Vince, supra, at paragraph 86, in which the British Columbia Court of Appeal referred to the guiding principle as “theproper and efficient administration of the trust”, and the protection of the interests of the beneficiaries.

[ 19 ] In his decision in this case, the judge directed himself, saying: [24] The leading common law case regarding the removal of trustees or executors is Letterstedt v. Broers (1884), 9 App. Cas. 371 , [1881-5] All E.R. Rep 882 (South Africa P.C.). In that case, the Privy Council held that the main concern of the court is the interests and welfare of the beneficiaries. In order to achieve the goal reflected in that concern, the only real question before the court is whether the executor has the capacity, the ability, the will, and the intention to administer the estate.

It is not necessary for someone opposing an appointment or seeking a removal of an executor to demonstrate past misconduct, although if it is shown to have occurred then past misconduct can be an important factor in predicting future behaviour. [ 20 ] Turning, then, to application of these principles in this case, the judge summarized the grounds for Victoria’s application to remove Kathleen as an executor: first, Kathleen failed to pay for insurance and taxes on the house; and second, she removed some items from the film and book collection without Victoria’s consent.

Regarding the insurance and taxes, the judge concluded: [26] ... Even if the taxes remained unpaid or the property uninsured, this would be evidence of past misconduct on the part of both executors and would not prove that this misconduct would continue into the future. Kathleen has submitted an oath of executor in requisite form and I have no reason to believe that she will break that oath. Regarding the film and book collection, the judge found: [27] ...

However, the testator deliberately restricted the discretion of his executors in respect of this collection by expressing his testamentary wish that the collection be divided between his daughters in the manner that they agree. ... They would have rights between them as beneficiaries of the collection and rights to litigate the division of the collection regardless as to who is the executor. The executor is required to account to each of them regarding the collection.

Even if Victoria’s allegation that Kathleen has already dealt with some of the collection turns out to be true, this would not disqualify Kathleen from acting as an executor. [ 21 ] As discussed in Dicks v. Dicks Estate , supra , there must be good reason for removing an executor designated in a will. Applying the above principles, a good reason to remove Kathleen as an executor has not been demonstrated. [ 22 ] Regarding Victoria’s removal as an executor, the judge determined that her lack of intention and will to carry out the trusts imposed on her by her father’s will justified her removal.

Simply put, if a named executor lacks the will and intention to carry out the terms of trust imposed, that executor is not acting in the interests and welfare of the beneficiaries, and must be removed. [ 23 ] The judge considered the evidence before him.

He found that if Victoria continued in her position as an executor, she would pursue her own theories that an international conspiracy was targeting her family, that her sister and stepmother are police agents, and that her father’s death was suspicious and its circumstances covered up, which would “unquestionably delay the necessary work to complete the administration and this would be to the detriment of the beneficiaries”.

The judge noted that there was no evidence supporting Victoria’s theories, that her pursuit of them had paralyzed the administration of the estate for the preceding five years, and moreover, even if true, they were irrelevant to the administration of her father’s estate. [ 24 ] The judge concluded that Victoria did not have the will and intention to carry out the trusts imposed on her by the terms of her father’s will and that she must be removed.

His conclusion is consistent with application of the governing principle set out in Broers — that executors must act in accordance with the welfare of the beneficiaries. Moreover, the judge’s reasoning and conclusion are in accordance with Story’s identification of “want of reasonable fidelity” as a justification for removing an executor.

In short, named executors who lack the will or intention to administer the trusts imposed upon them demonstrate a want of reasonable fidelity and must be removed. [ 25 ] The judge correctly stated the principle governing requests for removal of an executor to be the interests and welfare of the beneficiaries and identified capacity, ability, will and intention to administer John Scott’s estate as issues for him to decide in considering whether Victoria could remain an executor of her father’s Will.

In identifying these issues, he was not listing every circumstance that could justify removal of an executor, or stating an all-inclusive test for the removal of an executor; rather, he was identifying questions that would enable him to determine whether Victoria’s actions and plans were in conflict with the interests and welfare of the beneficiaries. Similarly, in Fleming , this Court upheld a trial court’s determination that the executor’s conflict of interest respecting much of the property in that estate and the consequential delay in administering the estate justified his removal.

Clearly, if an executor’s personal interests are in conflict with an executor’s administration of an estate, that executor is not acting in accordance with the welfare of the beneficiaries and is demonstrating a want of reasonable fidelity. [ 26 ] In

summary, the judge made no error in removing Victoria as an executor of her father’s Will because she lacked the will and intention to carry out the terms of the trust imposed on her. Costs [ 27 ] Kathleen submits that, as the successful party, her costs of the appeal should be paid out of Victoria’s share of the estate. The relevant law and the facts of this case do not support such an order. [ 28 ] I begin with the generally applied principle in litigation that the successful party is awarded costs, although solicitor and client costs are awarded in only limited circumstances.

However, in estate matters, depending on the facts, the costs of some or all of the litigants may be paid out of the estate on a solicitor and client basis ( Dicks v. Dicks Estate , supra , at paragraphs 62 to 72 ; Melendy v. Drodge , 2017 NLCA 46 , 2 C.A.N.L.R. 114, at paragraphs 53 to 55 ). Such an order may be made in circumstances where “there was an issue of substance arising under the will that warranted the court application” ( Elton Estate v.

Elton , 2010 NLCA 2 , 292 Nfld. & P.E.I.R. 237, at paragraph 38 ). [ 29 ] In this case, the questions of whether solemn proof of the Will was required and whether Kathleen or Victoria or both should be appointed executors are issues of substance arising under the Will. This is a circumstance in which it is appropriate to order costs to be paid out of the estate, and in the case of Kathleen, on a solicitor and client basis.

[ 30 ] In the court appealed from, the applications judge ordered that Victoria would bear her own costs, and that Kathleen would have her costs from the estate. Since the judge did not specify the level of costs, it is presumed that party and party costs would apply. The judge gave no explanation for why Kathleen, who was successful on the application, should not have her costs on a solicitor and client basis out of the estate, given the nature of the application. No reference was made to the principles set out in Dicks , Melendy and Elton Estate .

This failure would have a significant impact on Kathleen who was required to pay a portion of her costs herself since only party and party costs were awarded. Victoria, who was unsuccessful on the application, and represented herself, had no counsel-related costs, and had no responsibility for the costs for which Kathleen was personally responsible. In the circumstances, I am satisfied that the applications judge erred by failing to consider relevant principles as set out in the above cases.

I conclude that the above analysis should apply to costs both in this appeal and in the court appealed from. [ 31 ] In the result, I would order:

(1) Victoria, who represented herself, shall be entitled to be paid from the estate, the costs of her disbursements as set out under “Other Costs” in the scale of costs pursuant to the Court of Appeal Rules ; and

(2) Kathleen, who was represented by counsel, shall be entitled to her costs to be paid from the estate on a solicitor and client basis.

SUMMARY AND DISPOSITION [ 32 ] The applications judge did not err in determining that letters of probate should issue to Kathleen. There was no basis on which to order solemn proof of the Will. [ 33 ] The applications judge did not err in dismissing Victoria’s application to remove Kathleen as an executor of the Will, and in granting Kathleen’s application to be appointed sole executor. [ 34 ] Accordingly, I would dismiss the appeal, with costs on the appeal and in the court appealed from as set out in paragraph 31, above. _____________________________ B.G. Welsh J.A. _____________________________ L.R. Hoegg J.A. I concur: __________________________ F.P. O’Brien J.A.