McInnes Cooper v. Moncel Estate, 2012 NSSC 195

COURT OF PROBATE FOR NOVA SCOTIA Citation: McInnes Cooper v. Moncel Estate, 2012 NSSC 195 Date: 20120515 Docket: Hfx No. 353047 Probate No. 56368 Registry: Halifax Between: McInnes Cooper Appellant v. The Estate of the Late General Robert William Moncel Respondent DECISION Judge: The Honourable Justice Gerald R. P. Moir Heard: October 19, 2011 and February 2, 2012 Counsel: Gavin Giles, QC, for the appellant Myrna L. Gillis, for Aleida Engelhard Moir J. : [ 1 ] Introduction . Registrar Atton released a decision in the Moncel Estate last June.

She dealt with two issues: Should the Estate be responsible for the payment of legal fees incurred by the Personal Representative with regards to an application to the Supreme Court for an order appointing a guardian for the person and the property of the residual beneficiary, Aleida Engelhard?

The amount of commission to be awarded to the Personal Representative. [ 2 ] She determined that the estate should not pay for the attempt to secure a guardian for Ms. Engelhard and she set the commission at $50,900 less $29,670 that had been paid by the estate to McInnes Cooper on bills specified to be for the attempted guardianship. [ 3 ] In the course of giving reasons on the second issue, Registrar Atton also taxed the final account rendered by McInnes Cooper to the estate.

She noted that the estate had already paid $184,856 (including the disallowed $29,670) to the firm, and she wrote: A further final invoice has been filed in the amount of $34,390.85. I have carefully reviewed this invoice and have taxed and allowed this final invoice at $15,600.00 in legal fees, disbursements in the amount of $262.59 with HST in the sum of $2,379.39. McInnes Cooper appeals under s. 93 of the Probate Act . The only beneficiary supports the Registrar's decision. [ 4 ] Is This a Review ?

The right of appeal is established by s. 93(1): Any party aggrieved by an order or decision of the registrar, other than a grant, may in the prescribed manner, appeal from the order or decision of the registrar to the judge. [ 5 ] According to Re. Faye Estate , 2002 NSSC 242 at para. 4 , the appeal is by way of de novo hearing. Subsection 93(2) provides for certain things that may be done on an appeal, including in s. 93(2)(a): ... where the judge thinks fit, any of the parties ... may adduce the same evidence as that given before the registrar and ... further or other evidence … .

In this case, the parties elected to produce the same evidence that was before the Registrar. [ 6 ] A de novo appeal is not a review. The issue under appeal is decided afresh. The hearing of the appeal is more like first instance determination than appellate review. [ 7 ] Sufficiency of Reasons . Argument was devoted to this issue in light of R. v. Sheppard , 2002 SCC 26 . [ 8 ] The Registrar's decision says nothing directly about the subsidiary issue of McInnes Cooper's final account than what I have quoted.

On the other hand, the reasoning for a decision following a taxation is often as much apparent in the materials and the exchange with the adjudicator during submissions.

Counsel for the residual beneficiary painstakingly took me through the evidence and what there is for a record of the submissions. [ 9 ] A review of the exhibits that were before the Registrar, and are now before me, and of the written submissions made to her makes it clear to me that the Registrar's final decision followed this reasoning: · In addition to the costs of the guardianship billed as such, in 2008, 2009, and 2010 the estate paid for services on the guardianship logged to the general estate file.

· For the reasons expressed by the Registrar in connection with the guardian services billed as such, the estate should not bear the charges for the attempted guardianship logged to the general estate file. · A study of those charges led the Registrar to disapprove of $15,600 that had been billed to, and paid for by, the estate over the years on bills that were not specified to be for the guardianship. [ 10 ] The Registrar gave extensive reasons on the second of these points. I do not think she had to articulate her reasoning on the first.

It is apparent from the reasons she gave on related issues and from the context of the evidence and submissions. I do not think she was obligated to itemize each charge that came within the third point. [ 11 ] However, there is no need for an inquiry into the sufficiency of the Registrar's reasons. One of the purposes, perhaps the central purpose, served by sufficient trial reasons is adequate appellate review. The need for adequate appellate review disappears when the appeal is by way of de novo hearing. The issues are not reviewed.

They are decided anew. [ 12 ] As the appeal is by way of de novo hearing, the question of sufficient reasons is academic. [ 13 ] Evidence on Taxation.

This consists in: · The last invoice, which is dated June 8, 2011. · All other invoices on GG-302, "Estate of General Moncel", GG-311, "Appointment of Guardian-Aleida Engelhard", and GG-427 "Disposition of English Water Coulours (Aleida Engelhard/Owens Art Gallery, Mount Allison University)", some with supporting documents. · Duplicates of the invoice with extensions of time and rate for each entry. · A record of McInnes Cooper trust transactions from 2008 to 2011. · A detailed description by the executor of the work he did and background to the will. · The will. · Affidavit of the executor sworn on April 17, 2008. · Exhibits 2, 3, and 4 from the May 4, 2011 hearing. · Documents appended to a brief delivered by Ms.

Gillis to the Registrar after the hearing. I also have various correspondence, written submissions, and copies of authorities marked as provided in my order of November 7, 2011.

[ 14 ] De Novo Taxation . General Moncel died in December, 2007. He was incompetent then. His guardians were Ms. Gail Fraser and Mr. Alan Parish, QC. Mr. Parish was appointed under a 2003 will to be executor of the general's estate. [ 15 ] The will left the estate to "my friend and long-time employee Aleida Engelhard". By the time of the general's death she was experiencing periods of confusion. However, in the year before, Ms. Engelhard had taken precautions for her care. [ 16 ] She put her savings into BMO Trust Company under arrangements that limited access to funds. And, she made enduring powers of attorney.

The latest appointed Ms. Karri Zink. It was signed by Ms. Engelhard more than a year before the general's death. She signed it after taking advice from counsel. [ 17 ] Ms. Fraser became aware that Ms. Engelhard signed a power of attorney. She passed that information along to Mr. Parish before General Moncel died. [ 18 ] Mr. Parish appointed Mr. Larry Hayes, QC, to be proctor. The two of them discussed having a guardian appointed for Ms. Engelhard. Mr. Parish was of the view that Ms. Fraser would be the best person to take care of Ms.

Engelhard's affairs. [ 19 ] No adequate explanation has been given to me for why decisions were made for the estate to seek a court appointed guardian for the beneficiary when the beneficiary had already made her own decisions for her personal and financial care. When the power learned of the estate's plan and the beneficiary's counsel challenged the executor, he said "I am not certain that the power of attorney is relevant at this point." [ 20 ] Mr. Giles goes further by suggesting that the estate representatives were doing a "good deed", which is now being punished.

I disagree. [ 21 ] I must be empathetic about my disagreement. The only business the estate representatives had with the beneficiary was to carefully manage the property and to make distributions. Being aware that the beneficiary had made arrangements for her personal and financial care, the estate representatives had no business proposing to override her choices.

On that subject, the estate representatives were strangers. [ 22 ] Instead of showing respect for the beneficiary's autonomy, the estate representatives embarked on a course that charged nearly fifty thousand dollars in legal fees to a fund that ultimately belonged to the beneficiary, and they put her to the expense of retaining counsel to defend her autonomous choices. [ 23 ] For the beneficiary, Ms. Gillis challenges seventy-six entries for time charged against the estate between December of 2007 and May of 2010.

She says, with one caution, these are all charges in connection with the guardianship sought by the executor. They total $12,680.20 plus HST of $1,648.43 for a total of $14,383.68. [ 24 ] The challenged charges are identified in exhibit 3, which is titled "Guardianship Charges". The caution reads: "not all entries are exclusively on this subject". [ 25 ] An example of an entry to which the caution applies is an entry on an invoice dated March 31, 2008. The entry is for work on March 3, 2008 by the proctor. The description reads: Telephone conference Alan Parish re proposed loan to R.

Moncel estate and application for guardianship of Aleida Engelhard. The second

part is about work on the guardianship. The first

part is not.

[ 26 ] In such instances, I apportion the guardianship charge according to the number of services in the description. In the example, that would be half. [ 27 ] Some $29,000 in special bills for the guardianship was disallowed by the Registrar. That determination is not under appeal.

I have reviewed the general bills and find that the following charges pertain to the guardianship: Date Charge Description 12.18.07 245 correspondence and research guardianship 12.18.07 350 correspondence and research guardianship 12.19.07 320 guardianship meeting 12.19.07 245 guardianship meeting 12.27.07 114 discuss guardianship 1.9.08 70 teleconference with AP re AE 1.18.08 140 re meeting with AE–if she is incompetent why did they meet with her? 1.18.08 525 preparing to meet with AE–see above 1.21.08 700 meeting with AE–see above 1.23.08 175 teleconf and fax with AE's doctor 1.24.08 105 teleconf with AP re assessment of AE 2.11.08 175 emails re Ms.

Zinck 2.19.08 175 teleconf with AE's doctor 2.20.08 165 office conference re guardianship 2.20.08 105 office conference re guardianship 2.25.08 105 review letter re guardianship 3.3.08 35 teleconf included discussion of guardianship 5.5.08 70 teleconf re visit to AE 5.6.08 70 correspondence re AE (Kinley and AP)

5.7.08 175 guardianship application 5.7.08 175 emails re guardianship and capacity 5.8.08 105 teleconf re guardianship 5.12.08 105 discussion re guardianship 8.21.08 175 guardianship and privilege 8.25.08 140 privilege and capacity 11.4.08 70 email to GG 11.24.08 140 review correspondence re. AE 12.5.08 105 teleconf re AE 12.5.08 280 meeting with Bryson re court application re POA 12.8.08 70 email review 12.9.08 175 meeting with GG 1.29.09 90 meeting re.

AE 1.29.09 540 meeting with AP and GG 2.2.09 216 guardianship discussion with AP, Hodder 2.2.09 108 split appointment of guardian 2.10.09 180 email re application 3.12.09 30 research 3.12.09 108 pleadings 3.13.09 357.50 review of references to incompetency in file 3.16.09 72 opinion re. attorney 3.30.09 108 discussion with GG 4.13.09 252 email re

5.7.09 165 minutes of settlement 5.14.09 360 minutes of settlement 5.19.09 360 discuss guardianship 5.20.09 540 minutes of settlement 5.22.09 360 letter to counsel re 5.27.09 216 letter to counsel re 9.10.09 108 Berkley staff reports 9.11.09 151.20 Berkley staff reports and interviews 9.16.09 76 Berkley staff reports and interviews 9.17.09 285 Berkley staff reports and interviews 9.18.09 110 AE mental condition 9.18.09 95 Collins of Berkley 9.21.09 165 Berkley and interviews 9.21.09 152 Berkley staff 9.22.09 55 Berkley staff 9.24.09 19 Berkley staff 9.25.09 19 Berkley staff 9.30.09 19 Berkley staff 10.8.09 57 Berkley staff 10.15.09 27.50 Berkley staff 11.13.09 38 Berkley staff 11.16.09 38 Berkley staff 11.17.09 57 Berkley staff 11.18.09 95 Berkley staff 11.19.09 304 Berkley staff

11.20.09 38 Berkley staff 11.23.09 38 Berkley staff 1.13.10 37 visiting AE 1.19.10 74 review Gillis correspondence 1.20.10 74 correspondence to Gillis 2.1.10 111 visiting AE 3.1.10 37 guardianship 5.6.10 74 correspondence from Gillis 5.7.10 111 review guardianship file 5.10.10 148 correspondence to Gillis [ 28 ] These charges total $12,279.20. Adding HST produces $13,875.50. The final account in the amount of $34,390.85 is allowed at $20,515.35. [ 29 ] Costs. The estate did not participate in the appeal. The beneficiary was largely successful.

I will order that the firm pay party and party costs to the beneficiary. [ 30 ] Tariff C can provide guidance for the amount of costs on a de novo appeal. Applying a three times multiplier to the half day range, I settle costs at $3,000 plus disbursements. J. COURT OF PROBATE FOR NOVA SCOTIA Citation: McInnes Cooper v. Moncel Estate, 2012 NSSC 195 Date: 20120515 Docket: Hfx No. 353047 Probate No. 56368 Registry: Halifax

Between: McInnes Cooper Appellant v. The Estate of the Late General Robert William Moncel Respondent LIBRARY HEADING Judge : The Honourable Justice Gerald R. P. Moir Heard: October 19, 2011 and February 2, 2012 Subject: Probate; taxation by Registrar, sufficiency of reasons; appeal to judge, standard of review, de novo hearing.

Summary: Estate representatives attempted to secure the appointment of a guardian for the only beneficiary although the beneficiary had already secured her physical and financial care through an enduring power of attorney and an agreement for a restricted account at a financial institution. The Registrar found that the work on the guardianship was unnecessary. She disallowed bills totalling $29,670 on the attempted guardianship and, without express reasons, she disallowed another $15,600. Issues: Whether Registrar required to give sufficient reasons for taxation. Nature of review. Taxation.

Result: An appeal under s. 93 of the Probate Act is de novo . The question of sufficient reasons is, therefore, academic. (By reading the submissions and evidence it becomes plain that the Registrar found the $15,600 to be also for work done on the attempted guardianship, but billed to the estate in general accounts.) On the de novo taxation, charges were found to be unnecessary and $13,875 was disallowed. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET .