Prevost Estate v. Prevost Estate, 2012 NSSC 199

Editor ’ s Note: Corrigendum released on June 28, 2012. Original judgment has been corrected with text of corrigendum appended. SUPREME COURT OF NOVA SCOTIA Citation: Prevost Estate v.

Prevost Estate, 2012 NSSC 199 Date: 20120516 Docket: Hlfx Probate Court No. 55089 Registry: Halifax Between: Joslyn Schultz and Gregory Prevost Executors of the Estate of Eric Prevost, Joslyn Schultz, Gregory Prevost and Sharyn Prevost as the issue of the Late Eric Prevost Applicants and Joan Prevost, Administrator of the Estate Theodore Prevost, Theodore Prevost and Randall Prevost as the Issue of the Late Theodore Prevost Applicants and Tyrone Bradley Prevost Sole Surviving Executor of the Estate of Claude Delbert Prevost Respondent Judge: The Honourable Justice Patrick J.

Murray Heard: November 22 nd , 2011, in Halifax, Nova Scotia Oral Decision: February 29 th , 2012

Written Decision: May 16, 2012 Counsel: Matthew J. M. Gibbon, for the Plaintiff James K. Harper, for the Defendants By the Court (orally) : [ 1 ] First of all thank you for your patience in awaiting my decision from our appearance in November. [ 2 ] This is my oral decision in respect of the Will of the late Claude Delbert Prevost.

Because this is an oral decision I reserve the right to edit and to add case citations or correct grammar and if necessary clarify my reasons but if I do so or should it become necessary, the decision itself certainly will not change. [ 3 ] I will mention that the decision is a bit lengthy so I will ask for your indulgence in that regard. Introduction and Background: [ 4 ] This is my decision in respect of the Will of the Late Claude Delbert Prevost who died August 24, 1996 at or near Halifax, Nova Scotia. Mr. Prevost made a Will, his Last Will and Testament, dated November 2 nd , 1983.

I have been asked to interpret his will and in particular clause 4 which I shall address in this decision. [ 5 ] Although he died in 1996 Mr. Prevost ’ s estate was not probated until ten (10) years after when on May the 2 nd , 2006 a Grant of Probate was issued by the Court of Probate for Nova Scotia under the signature of its Registrar in Halifax, Sharon M. Atton. [ 6 ] In his Will Mr. Prevost named as his Executors two of his brothers, Tyron Prevost and Eric Prevost. The latter, Eric Prevost, died November 12 th, 2005.

Prior to that, but after the death of Claude, another brother Theodore Prevost died on April 30 th , 1997, less than a year after Claude. It was the surviving Executor then, Tyrone, who made application on April 23 rd , 2006 to probate the estate (the “ Estate ” ). There is little documented about the Estate and its management from Mr. Prevost ’ s death in 1996 until the Application for Probate was made in 2006. [ 7 ] Eric Prevost ’ s children are all alive and are named as parties to the Application along with his Estate.

They are Jocelyn Shultz, Gregory Prevost, and Sharon Prevost, issue of Eric Prevost. [ 8 ] As well Theordore Prevost had two sons which are both living and they have been named as parties to the Application along with his estate. They are Theodore Prevost and Randall Prevost, issue of Theodore Prevost.

I shall refer to the children of Eric and Theodore Prevost and their estates collectively, as the Applicants. [ 9 ] The estates of Eric and Theordore Prevost were advised by the Proctor for Claude Prevost ’ s estate that they would no longer be considered beneficiaries of the Estate as Eric Prevost and Theordore had died prior to the distribution of the Estate. The Applicant ’ s understand there has been a partial distribution but have not been provided particulars up to this point as the Estate has not considered them to be beneficiaries.

Apparently there has been a partial distribution and there remains in the Estate real property and funds, being held pending final distribution.

[10] The Will itself directs the Executors to first pay the Testator’s debts, funeral, and testamentary expenses which is standard andalso the law in connection with administration of estates. The Will then proceeds to deal with gifting.

The main clause in question in theWill is clause 4 which reads as follows: “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.” [11] A second related clause is clause 5 which states: “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 issue ofthe deceased sister or brother and shall divide the share among the issue in equal shares per stirpes.” [12] The Applicants contend that these two clauses amount to the subject matter of this proceeding as they are essentially the twogifting clauses in the Will. [13] The Respondent is the Estate of Claude Prevost as represented by the surviving and named Executor, Tyrone Prevost.

TheRespondent submits that clause four (4) is unambiguous if the words used are given their natural and ordinary meaning. As such, theysay, they are not subject to doubt. The Estate humbly asks the Court not to grant the Order to the Applicants making them beneficiariesof the Claude Prevost estate. [14] The Applicants ask the Court to decide how the Estate is to be divided and among whom. In short whether or not theApplicants, (any or all of them) are beneficiaries of Claude Prevost’s estate? Issues: [15] The main issue involved in this case is the

interpretation of the Will to determine whether the two brothers who survived theTestator are entitled to be considered beneficiaries under the Will of Claude Prevost? That is, the two brothers who survived theTestator, their estates and/or their children. [16] Consideration of this issue will necessarily involve the Court determining the meaning of the phrase “time of division”. Law and Analysis [17] Both sides agree this Court has jurisdiction to hear this matter pursuant to s. 8(1) of the Probate Act of Nova Scotia, SNS 200,c. 31 which permits the Court under Rule 8 (1)(

c) to:

i) effect and carry out the judicial administration of estates of deceased persons through their personal representatives; and ii) hear and determine all questions, matters and things in relation thereto necessary for such administration. [18] In this case the Applicants are asking the Court to determine and provide guidance to the Estate on the issue of whether or notthe Applicants, separately or as a whole, are beneficiaries under Claude Prevost’s estate. Both sides agree also that the Court’s primarypurpose is to determine the intention of the Testator from the language used in the Will.

The Respondent Estate has provided thefollowing quote of Justice M. Jill Hamilton in the case of Royal Trust v Mann 2001, NSSC 16 where at para. 4 she said: “A court of construction such as this is to determine the testator’s intention from the words in the testamentary documents and not fromother indicia of disposative intent.”

[ 19 ] The Respondent Estate further recites from the case of Peters Estate (Re) (Cited as: Peters Estate (Re) IN THE ESTATE OF Edith J. Peters, deceased) , 2007 NSSC 103 , where Justice Goodfellow stated at para 13: “ ...only when such intention cannot be arrived at with reasonable certainty by giving the natural and ordinary meaning to the words which he has used that resort is to be had to the rules of construction which have been developed by the Courts in the

interpretation of other wills. ” [ 20 ] The Respondents in this case say that clause 4 contains words used in the ordinary way by Claude Prevost and those words are clear and unambiguous. The Respondent say the words are quite specific stating the residue is left to the surviving brothers and sisters (except one) to be divided among those brothers and sisters “ alive at the time of division ” .

In short, the Estate says no construction is necessary, it is clear enough as it is stated. [ 21 ] The Applicants however, submit there is an ambiguity, and that the intention is not immediately recognizable by the language, and that it is not patently obvious what Mr. Prevost ’ s intention was and it is therefore necessary for the Court to ascertain and give effect to the intention of the Testator. [ 22 ] In support of their position the Applicants cited Re: Burke [1968] O.J. No. 434 , an Ontario Court of Appeal case but also the decision of Tidman, J. in Parrish Estate , 2006 NSSC 290 .

At paragraph 19 of it ’ s brief, the Applicants refer to paragraph 15 of the Court ’ s decision in Parrish which states: “ In my opinion, the first duty of the court in construing a will is to ascertain the intention of the testator from the language used in the will. The proper procedure is to form an opinion, apart from the cases, and then determine whether the cases require a modification of that opinion. ” [ 23 ] The Applicant argues that Mr.

Prevost constructed his will in a manner so as to benefit his siblings with an equal interest in his estate, but also the issue (children) of the siblings, should one or more of his siblings be unable to receive their share. [ 24 ] Turning now to clause four (4), Mr. Prevost directed that all of his Estate would be given to and I quote: “ to my surviving sisters and brothers ” . Then he said after that, “ except Ervin Graham Prevost ” . Then he said, “ to be divided equally ” .

Finally clause four(4) reads, “ amongst those sisters and brothers alive at the time of division. ” [ 25 ] In considering the words in this clause the intended gift to, his sisters and brothers who survived him is clear, as is the manner in which he wanted it divided, equally. What is less clear is the “ time of division ” , or specifically, “ amongst those sisters and brothers alive at the time of division ” . [ 26 ] There is no definition “ per se ” of “ time of division ” contained in the Will nor was the Testator specific as to when that would be.

The Respondent suggests that the time of division means the time of distribution, citing the meaning of the word “ division ” in Black ’ s Law Dictionary as being synonymous with “ distribution ” . In short the Estate submits that the two words are interchangeable. I find, with respect, it is not as simple as applying or attributing a dictionary meaning to the word to resolve this matter.

A more comprehensive view of the Will and the wording is necessary. [ 27 ] On the one hand the Testator wishes to benefit his “ surviving brothers and sisters ” and then on the other hand he says “ amongst those alive at the time of division ” . The plain wording suggests a couple of contingencies: (1) that they survive him; and (2) that they live long enough (to be around) for the distribution of the Estate, if that is what is meant by “ time of division ” .

In my view more needs to be looked at before arriving at such a conclusion. [ 28 ] In clause five (5) the Testator clearly intended to name as beneficiaries, the children of any of his brothers and sisters, by

setting aside one of the equal shares for the issue of the deceased brother or sister and, divide that share among the issue, “ per stirpes ” . [ 29 ] Clauses four (4) and five (5) of the Will, when considered together, suggest equality among Claude Prevost ’ s siblings, even in death as the theme or hallmark of his gifting intent. Clearly the time of the division in clause five (5) is identified as the time of death, with his use of the words, “ pre-decease me ” . [ 30 ] This would further suggest that “ surviving brothers and sisters ” in clause four (4) meant those who did not pre-decease him.

Here I note the use of the words “ one of the equal shares ” in clause five (5). On review this could only be one of the shares mentioned in clause four (4). There are no words of limitation or contingencies in clause five (5) requiring any of the issue of the deceased siblings to have survived the date of distribution, such as would be the case in clause four (4), for the siblings if time of division means time of distribution. [ 31 ] The Estate points out that these were the last wishes of the Testator and as such, must be honoured. This is true, subject only to determining what those last wishes were.

The Applicant submits his wishes were, in clause four (4) to describe the “ manner ” of giving by the words, “ to be divided equally amongst those sisters and brothers alive at the time of division ” .

In other words they say clause four (4) is not intended to on the one hand “ giveth ” and the other hand “ taketh ” away, by any one of them not surviving the date, when the Estate would ultimately be divided. [ 32 ] To illustrate how easily an ambiguity can arise, and perhaps even resolved another approach here is to consider the words “ divided ” and “ division ” , given that they are similar words appearing in the same clause. It is reasonably clear, in my view that by the word “ divided ” , the Testator was intending to describe the method of division, equally. Further it may be said that, one possible

interpretation of the word “ division ” , is that the Testator was referring to the time when the residue would be “ divided equally ” , an event triggered by the Testator ’ s brothers and sisters surviving him. This would mean that the “ time of division ” would be the time of death. [ 33 ] I turn now for a moment to further case law. The Respondent relied on the case of Re: Peters Estate .

I have reviewed the quotations of Justice Goodfellow in that case cited in the Respondent ’ s brief, in respect to when a gift should vest and the presumption in favour of the gift vesting early, that is, unless the intention is clearly expressed otherwise. At paragraph 12 of Peters the Court stated: “ A construction which gives a vested interest is, no doubt, favoured by the Courts where there is ambiguity or doubt, but where the intention to create a contingent estate or interest is reasonably evident or clear that intention must be respected and carried out.

In this case the condition precedent to the vesting, that is, that Thomas shall be then living is, I think, clearly expressed, and we cannot treat it as a devise creating a vested interest without going in opposition to the terms of the will. ” [ 34 ] Citing further from Goodfellow J. In Peters at para. 11, the Respondents (at paragraph 20) of their brief state: “ The paramount and overriding rule in construction of a will is to determine the intention of the testator and when that intention is clear, it shall prevail.

Intention, where it is clear trumps the presumption of early vesting. ” [ 35 ] In Peters the Testator specifically stated with respect to the vesting of the gift to the beneficiaries and I quote, “ Provided each in turn survives the date of distribution of my estate. ” This wording compared to the Prevost Will makes it in my view, much clearer that the vesting would only occur (in Peters ) if each of the six (6) named beneficiaries, each in turn survived the date of distribution.

Such clear language is not present here and therefore the presumption of early vesting is in my view not “ trumped ” , by the wording in clause 4. [ 36 ] The Respondent further argues that the existence of certain clauses in Mr. Prevost ’ s Will operate to suggest, as was the case in Peters, that the Testator Mr. Prevost directed his mind to there being a time element delay, between the time of death and the time of division of his estate. [ 37 ] The Court in Peters arrived at this finding stating, “ clearly given the terminology she used ” . I agree the terminology in Peters was clear.

She, the testator, obviously turned her mind to the distribution date being later. With respect, that same clear terminology is

not present here to suggest that Mr. Prevost did the same. Further I am not prepared to accept that the mere inclusion of a “ Powers clause ” (and there are several powers clauses in Mr. Prevost ’ s Will) granting (his Executors) general powers, including the power of sale and the power to carry on business, among others; I am not prepared to accept that the mere inclusion of a powers clause allowing Mr. Prevost ’ s Executor unrestricted powers to deal with his assets, including the right to sell and carry on business, is sufficient to show that Mr. Prevost intended to postpone division.

I am not persuaded that the existence of these clauses, (clause 7) is sufficient to conclude that by “ time of division ” , Mr. Prevost meant time of distribution, so as to exclude his brothers who survived him but have since died. The inclusion of these clauses is common even where there is a clear intent to vest an estate at the time of death. [ 38 ] The Respondent raised also and provided certain principles of

interpretation in relation to whether a gift is vested or contingent. Referring to Oosterhoff on Wills and Succession, provided to the Court (as Exhibit #1) ,I quote: “ The general principle in construing apparently contingent gifts is that all words import futurity, whether conditional or merely temporal, make the gift prima face contingent. Thus a gift to a person “ if ” or “ provided that ” a specified event occurs, will be contingent.

Similarly if words such as “ at ” or “ upon ” the occurrence of an event or “ when ” , “ as ” or “ from and after ” it ’ s occurrence are used, the gift will prima face be contingent. ” [ 39 ] Neither of the words “ if ” or “ provided that ” are used in clause (four) 4.

The word “ at ” , however does appear, just before the words, “ the time of division ” . [ 40 ] Once again, clause four (4) reads as follows: “ I give all of my estate, both real and personal to my surviving sisters and brothers, except Ervin Graham Prevost, to be divided equally amongst those sisters and brothers alive at the time of division. ” [ 41 ] Oosterhoff states further that the prima facie principle of a gift being contingent, is subject to a contrary intention and the Courts readily find a contrary intention.

Looking again at clause 4, I don ’ t believe the word “ at ” and I so find, demonstrates clearly that the “ time of division ” is at some future date. One

interpretation, and this in my view is the most favourable position the Respondent can take, is that the gift was vested to the surviving sisters and brothers, subject to it being divested, if they did not survive the date of distribution. I note however that in Oosterhoff at page 678 the learned author stated also: “ While Courts prefer interests that are vested subject to divestment to contingent interests, they also prefer absolutely vested interest to those that are subject to divestment. ” [ 42 ] I believe this principle applies to this case.

The Courts prefer interests that are received to those that are received and then stand to be taken away. The Courts prefer that surviving brothers and sisters receive their gift ( “ to my surviving sisters and brothers ” ) over receiving them with a chance to loose them again ( “ amongst those sisters and brothers alive at the time of division ” ). [ 43 ] The Applicant cited in its brief the case of Skerrett v. Bigelow Estate , 2001 NSSC 116 Moir, J and the so called “ armchair ” approach in dealing with serious questions regarding any ambiguity, in this case clause 4.

Clause 4 is somewhat ambiguous as has been illustrated in my decision thus far. To illustrate the “ armchair ” approach, I cite from paragraph 12 of the Applicant ’ s brief, a passage from Moir, J: “ The Court puts itself in the position of the testator at the point when he or she made his or her will, and from that vantage point, reads the will and construes it, in light of the surroundings facts and circumstances. ” [ 44 ] I agree with the Applicant that due to the ambiguity this rule applies. I agree also there is little in the way of surrounding circumstances of Claude Prevost to consider, but there are some.

One is that all of his siblings were living when he drafted his will. Another is that he made his decision about which of his siblings he wished to provide for, including their children if they perished. [ 45 ] The Applicant provided a number of cases including Wright v Bell [1894] O.J. No. 327 and MacNeil v MacNeil [1997] B.C.J. No. 2466 . I have read these cases and while useful, are not overly helpful. When the time of division arose in these cases is clearly stipulated. I did find the case entitled the Estate of Lorne A. Campbell 2005 BSSC 1561 to be helpful, by reason of the following quote at paragraph 13:

“In order to determine the date at which the recipients of the interests are determined it is necessary to determine whether the gift wasvested or contingent. A contingent interest is one that is subject to the happening of an event that may occur. A vested interest, on theother hand, is one the enjoyment of which is merely postponed, though it may be subject to subsequent divestment.” [46] Here the court referred to Feeney, Canadian Laws of Wills, 4th edition.

Continuing at page 17.2: “In other words, if the gift is subject to a condition precedent, then it is contingent; if it is subject to a condition subsequent (which willcause the interest to be divested if the condition is met), then it is vested subject to divestment. In this case the gift was contingent. Therecipients would be determined as of the date the contingencies were satisfied. If it vested, the recipients would be determined as of thedate of the Testator's death. ” [47] I refer also to the reasons in Royal Trust v Mann, (referred to earlier), where Hamilton J.

A. said at para 14: “I am also satisfied the gift of residue to the testator’s issue vested at the time of the testator’s death not because of any expressedintention of the testator, but because of the presumption of early vesting when the wording of the will is not clear as to the time ofvesting. (Re: Hudson, 1970), (NS SC), 14 D.L.R. (3d) 79.” [48] I did find Mann to be helpful and of assistance to the court. [49] I find that the presumption of early vesting is applicable here. It could apply and should apply in the absence of clear evidencethat the Testator intended it would not.

In the context of clause four (4), I don’t believe the wording provides such evidence of intention. This means that Mr. Prevost’s residue vested in all of his surviving brothers and sisters upon his death, except for one which he named. [50] Quite apart from the presumption of early vesting, however, I believe that Mr. Prevost intended to benefit all of his brothers andsisters, whether or not they survived the date when his estate was distributed, (by benefiting their estates) and whether or not theysurvived him (by benefiting their issue). I conclude this on the basis and so find that:

(1) Mr. Prevost was clear as to whom his beneficiaries would be, his surviving sisters and brothers.

(2) Mr. Prevost was clear as to whom he wished to exclude, his brother, Ervin.

(3) Mr. Prevost was clear as to whom he wished to benefit if any of his brothers and sisters died before him, each of their issue. [51] I infer and so find from these expressions of intent that if Mr. Prevost had wished to exclude any brother or sister who survivedhim, but died before the Estate was distributed, he would have said so, or at least make it clearer than he did, as he did with respect tothose who predeceased him, in clause 5. [52] In Peters, Justice Goodfellow stated that a devise should not be created so as to go in opposition to the terms of the Will.

Thereare but two clauses, four (4) and five (5), that demonstrate Mr. Prevost’s intention. I find that the dominant intention in those clauses isto benefit all of his siblings, save one upon his death. I find further when he used “time of division”, he used it loosely. It was a looseterm in that it was not intended to control or alter what he had previously done, leave it to his surviving sisters and brothers. Hisdominant intention was to benefit his surviving brothers and sisters. It was not his intention to have their gift contingent on them livinglong enough to receive it. [53] To give the Will the

interpretation asked for by the Respondent Estate, would mean for example, he intended to disinherit EricPrevost who survived him by nine (9) years, and someone whom he obviously trusted by naming him as one of his Executors. It wouldmean also that the beneficiaries of his estate would continue to dwindle with the passage of time, as people died off. If Mr. Prevost hadthe good sense to draft a will I cannot accept that he would have intended such a result.

That he would have intended to benefit thechildren of his siblings that predeceased him (clause 5) but not the children of those that survived him (under clause 4, through hissiblings’ estates) would be going in opposition of what I have determined his intent to be.

Conclusion: [ 54 ] For the foregoing reasons I find that by the words “ time of division ” in Mr. Prevost ’ s Will he meant time of death. The case law I have cited has been helpful but my findings are based primarily on the Will and surrounding circumstances. [ 55 ] I order, therefore, that the beneficiaries of his estate (shall) include the estates of Eric Prevost and Theordore Prevost, they having survived his death, each having an equal share along with the other surviving sisters and brothers, with the one exception.

Neither party has asked that I determine the value of any such share. [ 56 ] This concludes my decision. Once again I want to thank you gentlemen, and both parties for your capable representations and assistance to the Court. I trust an appropriate Order will follow. [ 57 ] Order accordingly. J. SUPREME COURT OF NOVA SCOTIA Citation: Prevost Estate v.

Prevost Estate, 2012 NSSC 199 Date: 20120516) Docket: Hlfx Probate Court No. 55089 Registry: Halifax Between: Joslyn Schultz and Gregory Prevost Executors of the Estate of Eric Prevost, Joslyn Schultz, Gregory Prevost and Sharyn Prevost as the issue of the Late Eric Prevost Applicants and Joan Prevost, Administrator of the Estate Theodore Prevost, Theodore Prevost and Randall Prevost as the Issue of the Late Theodore Prevost Applicants and

Tyrone Bradley Prevost Sole Surviving Executor of the Estate of Claude Delbert Prevost Respondent Revised Decision: The text of the original decision has been corrected according to the erratum below. Judge: The Honourable Justice Patrick J. Murray Heard: November 22, 2011 Oral Decision: February 29 th , 2012, in Halifax, Nova Scotia Written Decision: May 16, 2012 Counsel: Matthew J. M. Gibbon, for the Plaintiff James K. Harper, for the Defendants ERRATUM Paragraph 25 has been corrected to read as follows: In the first sentence of paragraph 25 the words “ to gift ” should be replaced with the word “ gift to ” .

The Title page should be changed to read: Heard: November 22, 2011 Oral Decision: February 29, 2012