Lucas Estate (Re), 2012 NSSC 421

SUPREME COURT OF NOVA SCOTIA Citation: Lucas Estate (Re), 2012 NSSC 421 Date: 20120829 Docket: SN No. 404928 Registry: Sydney, Nova Scotia In the Matter of: The Estate of Eleanor Jeanette Lucas, Deceased - and - In the Matter of: An Application by Esther Lucas, Personal Representative of the Estate of Eleanor Jeannette Lucas for approval of the sale of real property situate at 18 French Street, Sydney, Nova Scotia LIBRARY HEADING Judge: The Honourable Justice Patrick J.

Murray Heard: August 22 nd , 2012 and August 29 th , 2012, in Sydney, Nova Scotia Oral Decision: August 29 th , 2012 Submissions on Costs: September 12 th , 2012 and October 3 rd , 2012 Written Decision: November 7 th , 2012 Subject: Costs - Rule 77 . Section 92(2) of Probate Act, SNS 2000, c 31 , Section 64(7) of Probate Regulations .

Summary: The personal representative applied under

Section 50 of the Probate Act for an Order approving the sale of the deceased’s residence. Issue: Whether costs should be awarded to the Estate against Beneficiary? Result: Costs awarded in favour of Estate. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET .

SUPREME COURT OF NOVA SCOTIA Citation: Lucas Estate (Re), 2012 NSSC 421 Date: 20120829 Docket: SN No. 404928 Registry: Sydney, Nova Scotia In the Matter of: The Estate of Eleanor Jeanette Lucas, Deceased - and - In the Matter of: An Application by Esther Lucas, Personal Representative of the Estate of Eleanor Jeannette Lucas for approval of the sale of real property situate at 18 French Street, Sydney, Nova Scotia Judge : The Honourable Justice Patrick J.

Murray Heard : August 22nd, 2012 & August 29th, 2012, in Sydney, NS Oral Decision: August 29th, 2012 Written Submissions September 12th, 2012 and October 3, 2012 on Costs: Written Decision: November 7th, 2012 Counsel: D. Greg Rushton, Counsel for the Estate Donald Lucas, Self-Represented

By the Court : [ 1 ] Please accept the following as my Decision on costs. The Estate of Eleanor Jeanette Lucas seeks costs against Mr. Donald Lucas, Respondent, as a result of an Application for court approval on the sale of real property at 18 French Street, Sydney, Nova Scotia. The Application was heard before me in Chambers on August 22, 2012. BACKGROUND [ 2 ] The Estate made Application for an Order to approve the sale of property at 18 French Street, Sydney, Nova Scotia, to the personal representative, Esther Lucas, for the sum of $32,000.00.

In support of the Application was filed the Affidavit of Esther Lucas. Attached to that Affidavit was the Grant of Administration with Will annexed, being The Last Will and Testament of Eleanor Jeanette Lucas, dated October 31, 1996. Also attached was an appraisal of the Estate's real property at 18 French Street. [ 3 ] Eleanor Jeanette Lucas died in Sydney on September 7, 2009. In her Will she left all of her Estate to her husband, William Alonzo Lucas. The Affidavit confirmed that Mrs. Lucas's husband predeceased her.

Consequently, her six (6) children were entitled to share equally in her Estate. [ 4 ] Of the six (6) children, namely Karen King, William Lucas, Donald Lucas, Curtis Lucas, John Lucas and Esther Lucas, all but Donald Lucas were in agreement and concurred that Esther Lucas would purchase the property for the sum of $32,000.00. In support of the Application, Esther Lucas filed an Affidavit. The Appraisal of the property at 18 French Street confirmed a fair market value of $32,000.00, as of the valuation date to be February 1st, 2012. [ 5 ] The Application was filed on July 17, 2012.

Donald Lucas appeared in Chambers on August 22nd and opposed the Application. The Application was for an Order approving the sale of the property to the personal representative, Esther Lucas for the appraised amount. [ 6 ] The evidence, as contained in the Affidavit of Esther Lucas is that she lived with her mother at 18 French Street from 2008 until her mother's death in October of 2009.

Esther Lucas returned to Cape Breton to live with her mother during this time. [ 7 ] Donald Lucas appeared and opposed the Application on the basis that the Appraisal did not properly include the garage located on the property or any valuation for the same. Apart from Mr. Lucas's concern, I posed a number of questions to the Applicant with respect to the validity of the sale price as well as the Application. I adjourned for a week to August 29th and directed the Applicant to address with Mr.

Donald Lucas the issue of the garage as raised by him. [ 8 ] In response to my request, the personal representative checked with the appraiser, and the state of the garage was such that it did not impact on the appraisal or increase the valuation given to the home. A letter dated August 23rd, 2012, including pictures were forwarded to Mr. Donald Lucas. Mr. Donald Lucas did not appear at the subsequent appearance ordered by me of August 29, 2012. [ 9 ] I granted the Order approving the sale requested by the Applicant. The Applicant had also requested that costs be awarded against Mr. Donald Lucas.

I reserved my Decision on costs pending further submissions with respect to costs from both the Applicant and Mr. Donald Lucas. [ 10 ] I have reviewed the cost submissions of the Applicant Estate as well as Mr. Donald Lucas. [ 11 ] The submissions of Donald Lucas state a number of reasons why he should not responsible for costs. A

summary of those is as follows:

(

i) Mr. Lucas denies undue delaying the sale of the real property at 18 French Street. (ii) Mr. Lucas states the personal representative failed to communicate relevant information regarding the sale of property to him, which could have avoided the court process; (iii) Mr. Lucas is in a poor financial situation and wishes to receive his benefits from the estate. Accordingly, he had nothing to gain by reducing his share. His only intent was to ensure the personal representative was acting in good faith and was fair to all beneficiaries; (iv) Mr. Lucas believed the garage could have added $5,000.00 to $10,000.00 to the value of the property. (

v) Mr. Lucas included a Chronicle Herald

article of January, 2012, indicating property values had increased based on home appraisals completed in 2010. Mr. Donald Lucas further indicated that the property values in Whitney Pier had increased by 10% during the past year, and that the personal representative did not inform him that she allowed the garage to disintegrate to the point where it had no value. He stated that his sister, Esther Lucas, started residing in the property in May of 2008. (vi) Upon receipt of the pictures on August 23, 2012, Mr. Lucas was "shocked" at the poor condition of the garage.

He knew it needed repairs but now acknowledges it is a hazard. Mr. Lucas alleges that it was in Esther Lucas's interest to delay settlement of the Estate as she was living in the family home rent free without the consent of all the beneficiaries. (vii) Mr. Lucas further alleges that the solicitor for the Estate refused to address some of his concerns and should have known that this would result in less cooperation from him, Donald Lucas. Mr. Lucas objects to the property not being put on the open market and the personal representative, in his opinion, was in a conflict of interest.

If not a conflict, he says, it (the transaction) was not open and transparent. (viii) Mr. Lucas cites several other areas of concern in his submissions. [ 12 ] In its' cost submission, the Applicant's solicitor, summarizes the law and makes specific reference to Rule 77 on costs, as well as Section 92(2) of the Probate Act and Section 64(7) of the Regulations under the Probate Act . The Applicant argues that Mr. Lucas made unsubstantiated claims and this has been ongoing since 2009. Further, the Affidavit evidence of Mr. Mozvik was provided. Attached were letters advising Mr.

Lucas that legal costs would be sought against him. [ 13 ] Mr. Rushton argued that the Estate was not aware of Mr. Lucas's problem with the garage until the court appearance of August 22nd, 2012. There was no indication from Mr. Lucas of any issue with the Appraisal Report until his attendance at the hearing. The position of the Estate was made clear in a letter of October 12th, 2011 from Mr. Mozvik to Mr. Lucas and there was a previous letter of July 4th, 2011. In that letter, Mr.

Mozvik indicated: "To date, I have heard from everyone except you". [ 14 ] Firstly, there is limited evidence before me in respect of the Decision on costs, to make conclusive findings on all of the points raised and allegations made. However, I am able to draw certain inferences. It should be stated that Mr. Lucas was under no obligation to concur in the sale. Under the provisions of the Probate Act and, in particular, Section 50(4), the Estate would be in a position to proceed with the sale upon securing interests amounting to 75% of those persons entitled to receive.

An Order approving the sale would be to protect the personal representative in future under the same provision of the Probate Act . [ 15 ] Secondly, I see nothing wrong with legitimate questions surrounding the appraisal and the valuation. However, the timeliness of raising that is important in that if those were raised earlier, less delay would have resulted. It is evident from the letters provided by Mr. Mozvik that Mr. Lucas did make a previous claims. Mr.

Mozvik's letter of October 12th, states: "You have provided a claim against the Estate dated December 4th, 2009 but you have not provided any receipts indicating that you have paid for these services." There is further support from Mr. Lucas's own submissions that he had a number of claims against the Estate. For example, he states that he paid all of his mother's living expenses and believed further that there was a more recent Will stating that his sister Esther and he would be the Executors of the Estate.

[ 16 ] I infer from the submissions of Donald Lucas, that the Estate has a legitimate concern regarding future claims by him. He is now shocked having seen the pictures, which suggests that he paid little attention to this issue previously and that it was raised for the first time on August 22nd. In addition, in assessing the nature of the allegations made by Mr.

Lucas in his costs submissions, there is merit, and I so find, in the Estate seeking court ordered approval so as to prevent any further claims in the future. [ 17 ] In the Estate's submissions it stated: "The Applicant respectfully submits that the Order granted by Your Lordship protected the interest of the Estate against any future or unpredictable behaviour of Mr. Lucas, yet caused the Estate to bear a significant burden relative to its' value.

The Estate should not have to bear the costs of an unruly beneficiary/litigant." [ 18 ] Under Rule 77 , the Court has the discretion in respect of the awarding of costs. That discretion amounts to making an Order that will "do justice" between the parties. The provisions of the Probate Act state that costs may be payable out of the Estate and further that the Court may order costs in any contested matter to be paid by the party against whom the Decision is given. That would include Mr.

Donald Lucas who, by virtue of the Regulations , was a person interested in the Estate and, in fact, appeared in response to the Application. For the purposes of the awarding of costs, he is a party against whom an award of costs may be made. [ 19 ] Having considered all of the submissions, I am of the view that, while Mr. Lucas was not obligated to concur for the sale, his actions in bringing the issue of the Appraisal forward (at a later date) caused the Estate delay. In effect, he "forced" the Estate to make the Application to Court.

The issue of the Appraisal could have been addressed prior to the Court Application had Mr. Lucas brought it forward at an earlier date. As well, the Estate has a legitimate concern in respect of future claims by Donald Lucas. [ 20 ] In exercising my discretion, I believe there is justification in awarding costs against Donald Lucas in favour of the Estate. I wish to be clear that a person interested in the Estate should not be discouraged from asking legitimate questions or raising legitimate issues in a timely manner with any personal representative. That is not the case here.

I infer from the submissions made that Mr. Donald Lucas was undeterred in respect of what he believed were legitimate claims, irrespective of what efforts the Estate made to satisfy or explain his concerns. Also, the timeliness, (or lack thereof), of raising certain matters goes to whether or not justice can be done. I am satisfied the Estate made all reasonable efforts to respond or satisfy his concerns. [ 21 ] According to the Tariff C, as referred to in Rule 77.18 , there are guidelines provided.

If a hearing is in excess of an hour, but less than a half-day, the range of costs awarded would be between $750.00 and $1,000.00. In this particular case, there was not one (1), but two (2) court appearances held. While those appearances were not lengthy, the preparation and attendance at same would have exceeded one (1) hour. I note, as well, the Estate did respond to the Court's request to explain the situation to Mr. Lucas. I note as well, Mr. Lucas chose not to attend at the second appearance, despite the Estate's efforts.

Considering all of the circumstances, I believe it would be fair if costs in the amount of $750.00 were awarded against Mr. Donald Lucas, to be taken from his share of the Estate. In my view, this will do justice between the parties for the reasons for which I have stated. Order accordingly. ______________________________ J.