Prevost Estate v. Prevost Estate, 2013 NSCA 20

NOVA SCOTIA COURT OF APPEAL Citation: Prevost Estate v. Prevost Estate , 2013 NSCA 20 Date: 20130212 Docket: CA 390628 Registry: Halifax Between: Tyrone Bradley Prevost, executor of the Estate of Claude Delbert Prevost Appellant v. Joan Prevost, administrator of the Estate of Theodore Prevost, Sr., and Joslyn Shultz and Gregory Prevost, co-executors of the Estate of Eric Prevost Respondents Judge: The Honourable Justice Peter M. S. Bryson Appeal Heard: January 30, 2013 Subject: Wills, estates, trust law, construction of wills, testamentary intention.

Summary: Claude Prevost died in 1995. With one exception, he divided his estate equally among his siblings. His will provided that the share of any sibling who predeceased him would go to that sibling’s children. All his siblings survived Claude Prevost but two died before his estate was probated in 2006. The executor took the position that equal division only occurred when the estate was distributed and therefore the children of the two siblings who died after Claude Prevost should inherit nothing.

A Chambers judge disagreed, holding that there should be equal division amongst all surviving siblings and the two estates of the sibilngs who died after Claude Prevost. Issue: Did the Chambers judge err in ordering an equal division as of the date of death or should “division” be at the time of distribution? Result: Appeal dismissed. Chambers judge did not err. The testator intended to benefit all his siblings equally. That was evident from his gift to issue of siblings who predeceased. It would make no sense to benefit those issue, but to disinherit issue of

siblings who died after the testator but before actual distribution. The will was not ambiguous and the testator’s intention could be discerned from the will itself. The date of equal “division” was not the time of distribution. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 7 pages. NOVA SCOTIA COURT OF APPEAL Citation: Prevost Estate v.

Prevost Estate , 2013 NSCA 20 Date: 20130212 Docket: CA 390628 Registry: Halifax Between: Tyrone Bradley Prevost, executor of the Estate of Claude Delbert Prevost Appellant v. Joan Prevost, administrator of the Estate of Theodore Prevost, Sr., and Joslyn Schultz and Gregory Prevost, co-executors of the Estate of Eric Prevost Respondents Judges: Oland, Beveridge and Bryson, JJ.A. Appeal Heard: January 30, 2013, in Halifax, Nova Scotia Held: Appeal dismissed with solicitor-client costs against the estate to the respondent, per reasons for judgment of Bryson, J.A.; Oland and Beveridge, JJ.A. concurring.

Counsel: Peter W. Kidston, for the appellant Matthew J.W. Gibbon, for the respondents

Reasons for Judgment: [1] Claude Delbert Prevost came from a large family. He had eleven brothers and sisters. With one exception, he wanted all ofthem to share in his estate. He put it this way in his Will: 4. I give all of my estate, both real and personal to my surviving sisters and brothers, except Ervin Graham Prevost to be divided equallyamongst those sisters and brothers alive at the time of division. [2] Mr. Prevost’s generosity was to extend to the next generation if one of his brothers or sisters predeceased him. That result wasassured by the next clause in his Will: 5.

I direct that if any sister or brother of mine has predeceased me then my executor shall set aside one of the equal shares for the issueof the deceased sister or brother and shall divide the share among the issue in equal shares per stirpes. [3] Claude Prevost died on August 24, 1996. He had appointed his brothers Tyrone and Eric as executors. If his estate had beenprobated in the normal course, likely all would have been well. But nothing was done. Probate was not taken out until 2006.

By thentwo of Claude Prevost’s siblings had died; his brother, Theodore died on April 30, 1997; Eric died on November 12, 2005. [4] The children of Eric and Theodore Prevost were then informed that they would no longer be considered beneficiaries of theestate because Eric and Theodore Prevost died before distribution of the estate. The executors of the estates of Eric and TheodorePrevost applied for an

interpretation of Claude Prevost’s will. Justice Patrick Murray found that those estates were entitled to share inClaude Prevost’s estate (2012 NSSC 199). [5] The executor of Claude Prevost’s estate now appeals, alleging that Justice Murray erred in his

interpretation of ClaudePrevost’s Will. The executor argues that Clause 4 of Mr. Prevost’s Will is not ambiguous and that the equal interests described in thatclause were intended to vest at the time of distribution. The executor interprets the words “time of division” in Clause 4 as synonymouswith time of actual distribution. [6] For reasons that follow, I agree with Justice Murray’s conclusion and would dismiss the appeal. Although no exception can betaken to the legal principles referred to in Justice Murray’s decision, resort to all of them need not be made in order to resolveinterpretation of this Will.

Interpretation of the Will [7] Much has been written about the principles governing the

interpretation of wills. Often there is a debate about how far thecourt may stray beyond the language used by the testator in her will. But there is unanimity on the beginning (Smithers v. MitchellEstate, 2004 NSCA 149): [19] The first duty of the court is to ascertain the intention of the testator from the language used in the will. Regard must behad, not only to the whole of any clause in question, but to the will as a whole, which forms the context of the clause. Effect must begiven, if at all possible, to all parts of the will.

A fair and literal meaning should be given to the actual language of the will, the ordinaryand grammatical sense of the words to be assigned unless the context otherwise dictates. The context may well include “surroundingcircumstances”. Only after the language employed by the testator has been approached in this fashion need resort be had to case law andlegal rules to see if any modification is required. These principles were referred to with references to relevant authorities by Davison, J. inCarter Estate Re: (1991), (NS SC), 109 N.S.R. (2d) 384 (T.D.).

The role of “surrounding circumstances” in thisexercise was discussed by this Court in Re: Murray Estate (2001), 2001 NSCA 25 , 191 N.S.R. (2d) 63, at paras. 20-25. [Emphasis mine] [8] One might have thought that ascertaining intention is a question of fact. But courts have long held that ascertaining theintention of a deceased as expressed in her will is a question of law (Thomas G. Feeney and Jim Mackenzie, Feeney’s Canadian Law of Wills, 4th ed., looseleaf (Toronto: Butterworths, 2000) ¶10.1).

The Supreme Court has described it this way: ... in construing a will, deed, contract, prospectus or other commercial document, the legal effect to be given to the language employed, isa question of law and in the construction of such a document, ... [R. v. Alberta Giftwares Ltd., (SCC), [1974] S.C.R. 584, at p. 588] [9] Sometimes it is necessary for the court to consider “surrounding circumstances” and to make findings of fact or mixed factand law. When this occurs, the Court of Appeal can only interfere if the trial judge makes a palpable and overriding error. (See forexample, McCormick v.

MacDonald, 2009 NSCA 12 at ¶ 61.) [10] The Court’s interpretative task is to try and ascertain the intention of the testator from the language used – not to import andimpose an intention from other cases, dictionary meanings, evidentiary presumptions, maxims of construction or other principles externalto the Will and the language of the testator, unless the testator’s intention cannot be settled without recourse to those principles. Thelanguage of the will itself must be examined contextually.

Justice Ritchie expressed it well in Alberta Giftwares, supra: ...it is an error of law to attribute a fixed meaning to a word of variable connotation by selecting one of alternative dictionary

definitionswithout regard to the context of the paragraph or sentence in which the word is used. [11] In this case, the testator’s intention is revealed by the language he used and the context in which it appears. Clause 4 begins: I give all of my estate, both real and personal to my surviving sisters and brothers...

This tells us that Claude Prevost wanted to give his estate to his brothers and sisters who survived him (Clause 5 provides for the interestof those who predeceased him). [12] But the opening phrase of Clause 4 does not tell us what percentage interest each surviving brother and sister is to have. Thebalance of the clause does so: …to be divided equally amongst those sisters and brothers alive at the time of division. The last word is “division”, not “distribution”. [13] In other words, each of the surviving brothers and sisters is to take the same degree of interest in Claude Prevost’s estate.

Thedivision is to be equal. Here, “division” is qualified by the percentage to which each beneficiary is entitled; it does not otherwise limittheir entitlement. [14] Any doubt about the foregoing is dispelled by Clause 5 which ensures that the interest of any sibling predeceasing ClaudePrevost be preserved for that sibling’s issue.

It would make no sense that children of siblings dying before Claude Prevost would inherit,but children of siblings who die after Claude Prevost would not. [15] Clause 5 is consistent with an equal division among all siblings except Ervin, regardless of when those siblings may diebecause it says that if a brother or sister predeceases, “... my executor shall set aside one of the equal shares ...”, (emphasis added). Obviously this equal division would not be possible, if it were subject to change owing to the later death of another sibling.

Thislanguage of “equal” shares – irrespective of whether some siblings predecease Claude Prevost – also ties clauses 4 and 5 together,disclosing a consistent intention and a like use of “equal” and “equally”. [16] The executor’s

interpretation of the Will is confined to a particular dictionary definition of the word “division” and neglects thelegally required contextual analysis (Alberta Giftwares, ¶ 10 above). His

interpretation depends on the temporal accident of when theWill is probated and distributed. This obviously frustrates the express intention of Mr. Claude Prevost because the failure to distributethe estate in a timely way determines who inherits. In other words, control over inheritance passes from the testator to the executor whocould “distribute” the estate at his leisure, disinheriting competing siblings in the process. A correct

interpretation of the Will is evidentfrom the testator’s language. Accordingly, it is unnecessary to consider presumptions, rules of construction, surrounding circumstancesor other evidence to supply a perceived deficiency in the language of the Will. The Will can be intelligibly interpreted on its face. Costs [17] It is often the case that parties in an estate dispute are awarded costs out of the estate. An adverse party may receive party-and-party costs; an executor or trustee will usually receive solicitor-client costs by way of indemnity. One cannot assume judicial generosityin all of these cases.

Much will turn on whether or not the contested issue arises from conduct of the deceased. Generally, if the need forresort to the court was caused by the testator, costs will be borne by her estate, (MacDonell, Sheard and Hull Probate Practice, 4th ed.(Scarborough, Ont: Carswell, 1996) pp. 372-381). However, courts are not always so indulgent with respect to costs on appeal (Re:Fleck, (1924) 55 O.L.R. 441 (Ont. C.A.); Re: Stuart, Johnson v. Williams, [1990] All E.R. 80 (C.A.); McDougald Estate v. Gooderham, (ON CA), [2005] 199 O.A.C. 203 at ¶ 89; Patrick v.

Telus Communications Inc., 2008 BCCA 246 at ¶ 43; and for ahelpful overview: St. Onge Estate v. Breau, 2009 NBCA 36, at ¶ 52-77). [18] In this case, the executor obtained the court’s

interpretation of Clauses 4 and 5 of the Will. Not content with that outcome, theexecutor appealed essentially repeating the narrow linguistic arguments unsuccessfully made before the Chambers judge. Therespondents have been put to needless expense. I would award them solicitor-client costs against the estate. I would not award any coststo the executor out of the estate of Claude Prevost. He should bear his own costs. Procedure [19] Because estates were named as parties in the style of cause, it is useful to recall that estates are not legal persons and cannot sueor be sued, (Warsh Estate v.

Warsh, [1996] O.J No. 3196, ¶ 29; Foo v. Yakimetz, [2002] O.J. No. 3958, ¶ 70). Civil Procedure Rule36.02 requires that representative parties such as executors must be described by name, followed by the title. Civil Procedure Rule 36.11says which parties must be joined in estate litigation. Where an estate lacks a representative party, CPR 36.12 permits the Court toappoint a representative. [20] Based on the record, the style of cause in this Court should have read: Tyrone Bradley Prevost, executor of the Estate of Claude Delbert Prevost Appellant v.

Joan Prevost, administrator of the Estate of Theodore Prevost, Sr., and Joslyn Schultz and Gregory Prevost, co-executors of the Estate ofEric Prevost Respondents For this reason, the court has changed the style of cause for the purposes of this decision. This is not to comment on how the case maybe cited. [21] The children of Theodore and Eric Prevost may also be parties, depending on whether they are beneficiaries of the estates of

their parents. ( CPR 36.11(1)(b)) The record does not tell us if they are. Conclusion [ 22 ] I would dismiss the appeal with costs to the respondents as previously described. Bryson, J.A. Concurred in: Oland, J.A. Beveridge, J.A.