MacCallum v. Langille Estate, 2021 NSCA 67

Nova Scotia Court of Appeal Citation: MacCallum v. Langille Estate, 2021 NSCA 67 Date: 20210923 Docket: CA 507586 Registry: Halifax Between: Claude Davison MacCallum Appellant/Applicant v. Ronald J. Creighton Lawyer for the Estate of Cora J. Langille and John Robert Langill the Executor of the Will Respondent Judge: Bryson, J.A.Motion Heard: September 15, 2021, in Halifax, Nova Scotia in ChambersHeld: Motion for stay dismissed; appeal set downCounsel: Claude MacCallum, appellant/applicant in person Sandra McCulloch, counsel for John Langill, Executor of the Estate of Cora Langille Decision: [1] Mr.

MacCallum made a claim against his mother-in-law’s estate which was dismissed. He has appealed. [2] Mr. MacCallum brought two motions in chambers, one for a stay pending appeal and the other to set the appeal down forhearing. The Estate took no position on the stay and opposed the setting down of the appeal, arguing that Mr. MacCallum lacksstanding. I dismissed the motion for a stay and set the case down for appeal, with reasons to follow. These are they. Background [3] Mr. MacCallum is the former son-in-law of Cora Langille, who died on August 7, 2020. Mr.

MacCallum was married to CoraLangille’s daughter, Shirley MacCallum, who died in May of 2014. [4] Cora Langille’s Will contained the following residue clause: 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. [5] Mr. MacCallum challenged the Will in general terms. He maintains that because Cora Langille wanted to benefit ShirleyMacCallum and he is Shirley MacCallum’s surviving spouse, he should inherit Shirley MacCallum’s portion of the residue.

He referredto a letter purportedly written by Shirley MacCallum to her mother, confirming that this was her wish and encouraging her mother toimplement it. He also argues that it would be unjust for the Estate to go to outsiders, by which he appears to mean Ms. Suidgeest. [6] The Estate brought a

summary judgment motion arguing that: (

a) Mr. MacCallum lacked standing to bring a claim in probate;and, (

b) in any event, his claim could not succeed given the language in Cora Langille’s Will. [7] The Honourable Justice Jeffrey R. Hunt granted

summary judgment to the Estate but declined to rule on standing (2021 NSSC229). [8] Mr. MacCallum sought a stay of Justice Hunt’s Order and an appeal date. Stay [9] I refused a stay because it would not affect the administration of the Estate as Mr. MacCallum intended. The decision ofJustice Hunt was a

summary dismissal of his claims against the Estate. Staying that Order would have no impact on the administrationof the Estate itself. So the claim made would not vindicate the relief sought. [10] In any event, the Purdy test for a stay could not be met because Mr. MacCallum cannot show any irreparable harm (Purdy v.Fulton Insurance Agencies Ltd. (1990), (NS CA), 100 N.S.R. (2d) 341 (C.A.)). Even if the Estate were distributed,he has not shown that he could not recover by way of damages any loss occasioned by refusal of a stay now in the event of a later

reversal of Justice Hunt’s decision by the Court of Appeal. Setting Down for Appeal [ 11 ] The Estate opposed the setting down of the appeal claiming that Mr. MacCallum lacked standing. [ 12 ] Mr. MacCallum brought his application to challenge the Will in accordance with s. 64 of the Probate Court Practice, Procedure and Forms Regulations , N.S. Reg. 119/2001 . Under those regulations only a “person interested in an estate may commence an application”. Justice Hunt quoted the relevant language: [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 8; (

i) unreleased security; (

j) personal representative. [ 13 ] I rejected the standing argument for four reasons: 1. Although the standing argument was made before Justice Hunt, he made no ruling on it and there is no cross-appeal with respect to his declining to do so; 2. No motion has been made before this Court for dismissal of the appeal based on lack of standing as might be possible under Rule 90.40; 3. The Estate’s argument of standing, based on the statutory definition of “a person interested in an estate” also assumes a favourable conclusion on the merits which have not yet been heard. So whether Mr.

MacCallum is a “residuary beneficiary” as he claims would require a favourable interpretative ruling on the residue clause—a procedure the standing argument would preclude. 4. Mr. MacCallum is unrepresented. His claims naturally lack the precision of legal drafting. Accordingly, some of his claims could be characterized as falling under the Probate Act , S.N.S. 2000, c. 31 ; others less clearly so. For example, any claim that the Will should be interpreted in Mr. MacCallum’s favour is jurisdiction which may belong to the Supreme Court, not the Probate Court.

A classic description of the probate – superior court jurisdictional distinction appears in Ali Estate (Re) , 2011 BCSC 537 : [22] The jurisdiction exercised by a court of probate relates to whether the testamentary instrument submitted for probate represents the true last will and testament of a deceased and whether the named personal representative is entitled to administer the estate. In essence, a court of probate focuses on what constitutes the testamentary instrument of the testator and its validity.

The inquiry pertaining to the validity of the testamentary document encompasses the issues of the capacity and the volition of the testator and whether the testator duly executed the testamentary document with knowledge and approval of its contents. [23] On the other hand, in exercising jurisdiction as a court of construction, the court is concerned with ascertaining the meaning of the testamentary documents that have been approved by the court in the exercise of its probate jurisdiction.

It is axiomatic that court must interpret or construe a will in the form in which it has been admitted to probate. [Emphasis added] [ 14 ] A more nuanced discussion can be found in Trider Estate Re (1978), 41 N.S.R. (2d) 663 (Prob. Ct) . The point was not argued and need not be resolved on the motions before me. Leaving the question open errs in favour of preserving Mr. MacCallum’s appeal.

[ 15 ] As a practical matter, Justice Hunt enjoyed both jurisdictions: one granted to him under the Probate Act and the other flowing from the inherent jurisdiction of a superior court. For this reason, any definition of “interested party” in the Probate Act would not necessarily exhaust of Mr. MacCallum’s right to make a claim amenable to inherent jurisdiction. Conclusion [ 16 ] The motion for stay is dismissed. The lack of standing argument should not preclude the appeal which is set down for February 1, 2022. Bryson, J.A.