Sweeney Cunningham Estate v. Sweeney -, 2013 NSSC 299

SUPREME COURT OF NOVA SCOTIA Citation: Sweeney Cunningham Estate v. Sweeney - 2013 NSSC 299 Date: 20131007 Docket: Yar. No. 417844 Registry: Yarmouth Between: Katherine Patricia Marilyn Sweeney and Laurence Kent Sweeney as Executors of the Estate of the late Mary Sweeney Cunningham -and- Kevin John Sweeney and James Patrick Trefry-Sweeney LIBRARY HEADING Judge: The Honourable Justice Robert W. Wright Heard: September 19, 2013 at Yarmouth, Nova Scotia Written Decision: October 7, 2013 Subject:

Section 8A of the Wills Act - validity of Will which was not executed in compliance with the formal requirements of the Wills Act (having only one witness) - whether executed Will embodies the testamentary intentions of the deceased.

Summary: On February 17, 2009 the testatrix executed a new Will in tandem with an alter ego Trust which had been prepared by her legal counsel in Halifax and sent for execution in Yarmouth. Both documents were executed but in the presence of only one witness which, in respect of the Will, failed to comply with the formal requirements of the Wills Act . This defect was noticed by counsel upon the return of the Will who then sent a fresh copy to the testatrix for re-execution before two witnesses. For reasons unknown, the testatrix failed to re-execute the Will prior to her death approximately four years later.

In drafting the new testamentary documents, a large cash bequest to both of the respondents was removed from the previous Will and the same amount provided for in the Trust (which was properly executed). One of the respondents contended that because the 2009 Will was invalidly executed, the previous Will signed in 2003 should stand with the result that the cash bequest would be duplicated.

The executors accordingly brought an Application in Chambers for a declaration that the 2009 Will embodied the testamentary intentions of the deceased and should be recognized as being valid and fully effective as if it had been executed in compliance with the Wills Act . Issue: Should the application brought under s.8A of the Wills Act , which came into effect in August of 2008, be granted?

Held: The test to be applied on a s.8A application is now well established in this court. The crucial question to be answered is whether the testamentary document expresses a deliberate or fixed and final expression of intention as to the disposition of assets upon death. Upon examining all of the circumstances surrounding the preparation and execution of the revised Will in 2009, together with the complementary Trust document, the court was satisfied that the writing embodies the testamentary intentions of the deceased and that the crucial question should be answered in the affirmative.

The application was therefore granted. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THE COVER SHEET. SUPREME COURT OF NOVA SCOTIA Citation: Sweeney Cunningham Estate v. Sweeney - 2013 NSSC 299 Date: 20131007 Docket: Yar. No. 417844 Registry: Yarmouth Between: Katherine Patricia Marilyn Sweeney and Laurence Kent Sweeney as Executors of the Estate of the late Mary Sweeney Cunningham Applicants -and- Kevin John Sweeney and James Patrick Trefry-Sweeney Respondents Decision Judge: The Honourable Justice Robert W.

Wright Heard: September 19, 2013 at Yarmouth, Nova Scotia

Written Decision: October 7, 2013 Counsel: Counsel for the Applicants - Timothy C. Matthews, Q.C. Counsel for the Respondent James Patrick Trefry-Sweeney - Blaine G. Schumacher Wright, J. INTRODUCTION [ 1 ] This is an Application in Chambers made under s.8A of the Wills Act , R.S., c. 505 by the executors named in the Last Will and Testament of the late Mary Sweeney Cunningham, who died at Yarmouth in March of 2013. [ 2 ] The Will in question was signed by the testatrix Mary Sweeney Cunningham on February 17, 2009 but unfortunately, her signing of the Will was witnessed by only one person, namely, Susan Buchanan.

Because the formal requirements for the execution of a Will under the Wills Act were therefore not fully complied with, the executors now bring this application for a declaration that the Will embodies the testamentary intentions of the deceased. [ 3 ] I will first set out the family relationships between the applicants and the respondents. The late Mary Sweeney Cunningham was the sister of the applicants Laurence Kent Sweeney and Katherine Patricia Marilyn Sweeney and was the aunt of the respondents Kevin John Sweeney and James Patrick Trefry-Sweeney.

The latter is also the son of the applicant Laurence Kent Sweeney and reached the age of nineteen on July 15, 2013. [ 4 ] Only James Patrick Trefry-Sweeney has contested this application. The co-respondent Kevin John Sweeney has taken no position in the matter and has not participated in it. JURISDICTION [ 5 ] As a preliminary matter, counsel for the second respondent has raised the question of the proper jurisdiction in which a

section 8A application should be brought. It is suggested that since such an application seeks to obtain an order from the court solemnizing a writing pursuant to s.31(1) of the Probate Act , the correct forum for that determination is the Probate Court of Nova Scotia as opposed to the Supreme Court of Nova Scotia.

Counsel has raised this point, not with the intention of delaying the proceeding, but rather to get directions from the Court given the wording of the legislation. [ 6 ] Counsel for the applicants contends that both courts have concurrent jurisdiction, emphasizing that any judicial determination of a s.8A application will be made by a Supreme Court justice acting in either capacity. As I stated during oral argument at the outset of the hearing, I agree with that submission for the following reasons:

(

a) Section 8A of the Wills Act confers this remedial power upon “ a Court of competent jurisdiction ” . There is no express restriction to the Probate Court; (b) Section 8(2) of the Probate Act states that nothing in that statute deprives the Supreme Court of jurisdiction in matters referred to in subsection (1). That specifically encompasses s.8(1)(

c) which empowers the Court of Probate to “ effect and carry out the judicial administration of the estates of deceased persons through their personal representatives, and hear and determine all questions, matters and things in relation thereto necessary for such administration ” ; (

c) Since s.8A came into effect on August 19, 2008, applications made under that amendment have been instituted and reported as decisions both from the Probate Court and the Supreme Court of Nova Scotia without comment as to any divided jurisdiction; (

d) Any divided jurisdiction is a distinction without a difference since any judicial determination of a s. 8A application will be made by a Supreme Court justice acting in either capacity. More specifically, s.4(2) of the Probate Act provides that each judge of the Supreme Court is a judge of every court of probate. [ 7 ] I therefore confirm my finding that the Supreme Court of Nova Scotia has concurrent jurisdiction with the Probate Court to decide applications made under s.8A of the Wills Act (as was exercised, for example, in MacDonald v. MacDonald Estate [2009] N.S.J. No. 503 ).

FACTUAL BACKGROUND [ 8 ] I turn now to the facts underlying this application which are not disputed. [ 9 ] The testatrix was a longtime client of David Stewart, Q.C. of the Stewart McKelvey law firm in Halifax who provided estate planning advice and prepared several Wills for her over the years. Mr. Stewart ’ s supporting affidavit was not contested. [ 10 ] The more recent history begins in November of 2002 when Mr.

Stewart wrote to the testatrix and her sister Patricia to advise of recent amendments to the Income Tax Act which would allow individuals over 65 to transfer assets into a special type of trust set up exclusively for the individual ’ s benefit during their lifetime. This trust is known as an alter ego trust, the principal benefits of which are privacy of estate information and the avoidance of probate taxes. It was further explained by Mr.

Stewart that the settlor of such a trust would still require a Will to deal with assets that would not be transferred to the trust, but rather still held in their individual names. [ 11 ] Ms. Sweeney Cunningham apparently was not receptive to establishing such a trust at that time because shortly thereafter, on January 30, 2003 Mr. Stewart sent to her a new Will he had prepared on her instructions. That Will was properly executed and witnessed on February 3, 2003.

In it, the testatrix made large cash bequests to both of the respondents Kevin John Sweeney and James Patrick Trefry-Sweeney (upon attaining the age of 19 for the latter). [ 12 ] Between 2003 and 2009, Mr. Stewart had further discussions with his client about the utilization of an alter ego trust and appropriate revisions to her 2003 Will. [ 13 ] Ultimately, in January of 2008, Mr. Stewart sent a letter to the applicant Laurence Kent Sweeney which began by noting that some time ago, Ms.

Sweeney Cunningham had tentatively agreed that for estate planning purposes, her assets having significant monetary value should be transferred into an alter ego trust. Mr. Stewart accordingly enclosed with that letter copies of the 2003 Will, a draft copy of a new Will, and a draft of the proposed Trust. In that same letter, he noted that the cash bequests to both respondents would now appear in the Trust, rather than in a new Will.

[ 14 ] After further discussions Mr. Stewart had among family members, Ms. Sweeney Cunningham accepted his advice and decided to proceed with an alter ego trust and a new Will. [ 15 ] Acting on those instructions, Mr. Stewart prepared and sent to his client under cover of a letter dated May 7, 2008 execution copies of the Trust and the new Will, along with directions for their proper execution. As Mr.

Stewart deposed in his affidavit, both documents were to be complementary to one another. [ 16 ] Approximately nine months then passed before arrangements were ultimately made for the execution of the Trust and the new Will. Since Mr. Stewart ’ s office was in Halifax, arrangements were made for the execution of these documents to take place at the offices of Grant Thornton in Yarmouth, who were longtime financial advisors for Ms. Sweeney Cunningham. [ 17 ] On February 17, 2009 Ms. Sweeney Cunningham, accompanied by the two applicants, attended at the Grant Thornton offices to execute the documents.

Susan Buchanan, then employed there as a senior accountant, was asked to be a witness to the signing. She therefore met the three Sweeney family members in the boardroom for that purpose. [ 18 ] After watching Ms. Sweeney Cunningham sign both the Trust and the new Will, Ms. Buchanan signed as sole witness to both documents. In doing so, she observed that the date line at the end of the Will had the year 2008 pre-typed, which was no longer accurate. She therefore made a handwritten alteration by writing the number “ 9" over the number “ 8" and initialled it after the date of February 17 th was also handwritten in.

Apparently, no one realized at the time that the formal requirements of the execution of a Will required the presence of two witnesses at the same time. [ 19 ] In any event, executed copies of the Will and the Trust were then returned to Mr. Stewart for safekeeping. Upon their receipt, Mr. Stewart noticed that the new Will had only been signed by the one witness. He therefore wrote to Ms. Sweeney Cunningham on March 2, 2009 pointing this out and advising that the Will was not properly executed and that in order to be valid, it required the signature of two witnesses. Mr.

Stewart therefore sent a clean copy of the Will with a request that it be re-executed and properly witnessed as he had instructed. [ 20 ] For reasons unknown, the re-execution of the 2009 Will never took place and was not attended to before the death of Ms. Sweeney Cunningham sometime in March of 2013, some four years later. There is no evidence of any further discussions having taken place between the testatrix and Mr. Stewart before she died. Her failure to re-execute the Will has now precipitated the present application.

ISSUES [ 21 ] The central issue to be decided in this case is whether the court is satisfied that the Will executed on February 17, 2009 embodies the testamentary intentions of the deceased. If so, the court now has the discretion to order that the Will is valid and fully effective as if it had been executed in compliance with the formal requirements imposed by the Wills Act . That discretionary power is conferred by s.8A of the Wills Act , which amendment came into effect on August 19, 2008 and reads as follows: 8A Where a court of competent jurisdiction is satisfied that a writing embodies (

a) the testamentary intentions of the deceased; or (

b) the intention of the deceased to revoke, alter or revive a will of the deceased or the testamentary intentions of the deceased embodied in a document other than a will, the court may, notwithstanding that the writing was not executed in compliance with the formal requirements imposed by this Act, order that the writing is valid and fully effective as if it had been executed in compliance with the formal requirements imposed by this Act. 2006, c. 49, s. 2 . [ 22 ] It should be added here that the evidence is abundantly clear that the actual date of execution of the Will in question was February 17, 2009 (well after s.8A came into effect), and not February 17, 2008.

It is therefore unnecessary for the court to consider the dual technical arguments advanced by counsel for the respondent with respect to the alteration of the date in the Will (per s.20) or whether the s.8A amendment was intended to apply retroactively. Those arguments have no bearing on the outcome of this application.

LEGAL ANALYSIS AND FINDINGS [23] It is readily apparent that the legislative purpose in enacting the s.8A amendment to the Wills Act is to prevent a testator’s proventestamentary intentions from being defeated by reason of non-compliance with the formal requirements for the execution of a Will asotherwise set out in s.6. [24] The test to be applied on the hearing of a s.8A application is now well established in this court. It was recently applied inRobitaille v. Robitaille Estate, 2011 NSSC 203 and in Komonen v. Fong, 2011 NSSC 315, having been adopted from the leading caseof George v.

Daily (1997) (MB CA), 115 Man.R. (2d) 27. In the latter case, the Manitoba Court of Appealconsidered a similarly worded provision in that province’s Wills Act. It ruled that the essential quality of the legislative term“testamentary intention” is that there must be a deliberate or fixed and final expression of intention as to the disposal of assets upondeath.

The Court of Appeal added (at para. 66): Whether it is the deceased's own instrument or the notes or writing made by a third-party, the crucial question to be answered is whetherthe document expresses the animus testandi of the deceased - a deliberate or fixed and final expression of intention as to the disposal ofhis/her property on death. [25] I have no hesitation in finding, in considering the whole of the evidence, that this crucial question should be answered in the case atbar in the affirmative and that the application should be granted. [26] There are several factors to be gleaned from the evidence in support of this conclusion.

Indeed, they form a stronger case for thegranting of the application than the fact situation presented in Robitaille. In that case, a woman gave instructions to her lawyer for arevised Will and later confirmed those instructions through a third party. Unfortunately, she fell ill and was hospitalized. The testatrixsigned the revised Will before she passed away but the Will was not witnessed at the time of execution. Instead, the witnesses addedtheir signatures to the Will at a later time.

Justice LeBlanc was nonetheless satisfied that the revised Will represented a deliberate orfixed and final expression of the testator’s intention to dispose of her property on death. He therefore granted the application and therevised Will was deemed valid and fully effective as if it had been executed in compliance with the formal requirements set out in theWills Act. [27] The factors in the present case supporting the conclusion I have reached can be summarized as follows: (

a) Unlike the Komonen case, where the document in question was a printed Will form signed by the deceased with portions completedin pencil, which was found in his home after his death, here the impugned Will was prepared by Mr. Stewart in accordance with hisclient’s instructions after discussions and correspondence over a long period of time. Significantly, the Will in question was draftedsimultaneously with an alter ego trust, both of which were sent to the deceased in the same package for execution. Also of significance isthe fact that the revised Will and the Trust were intended to complement each other; (

b) On receipt of the revised Will and the new Trust document, arrangements were made for the client to attend at the office of heraccountants in Yarmouth, Grant Thornton, accompanied by the applicants. The location was obviously chosen where there would bereliable and independent witnesses to the execution of the documents. Both were signed by the testatrix and witnessed by Ms. Buchananas above recited. The documents were then returned to Mr. Stewart after execution for safekeeping; (

c) A comparison of the previous Will signed in 2003 with the revised Will and Trust signed on February 17, 2009 indicates aconsistency in the intentions of the testatrix in respect of the bequests she wanted to make to both respondents. The amount of thebequests specified in the 2009 documents was exactly the same as that specified in the 2003 Will. However, as Mr. Stewart explained inhis covering letter to his client dated January 9, 2008, the cash bequests to both respondents were removed when the new Will wasprepared and provided for in the Trust instead; (

d) Mr. Stewart in his supporting affidavit deposed that he has no reason to believe that Ms. Sweeney Cunningham intended that her

2003 Will should continue in effect, such that the cash bequests to both her nephews would be duplicated. It appears that the only substantive change with respect to the cash bequest to the respondent James Patrick Tefry-Sweeney was that instead of becoming transferrable upon his attaining the age of 19, payment of the capital amount of the bequest was to be made under the Trust in three stages upon the attainment of ages 25, 30 and 35 respectively (with interest). [ 28 ] The main thrust of the argument on behalf of the respondent is that since Ms.Sweeney Cunningham was later advised by Mr.

Stewart that the execution of her new Will was defective and thereby invalid, and with that knowledge she then failed to re-execute the Will properly before she died four years later, the court ought to infer that she had a change of heart and wanted the bequest to the respondents under the 2003 Will to stand alongside the Trust executed on February 17, 2009. It was therefore contended that she ultimately had no intention of re-executing the 2009 Will and didn ’ t want to disentitle the respondents to the cash bequests contained in the 2003 Will.

If that argument had been successful, both respondents would have seen their cash bequests doubled from the original amount (through the combined operation of the 2003 Will and the 2009 Trust). [ 29 ] That argument gains no traction with the Court. What the Court focuses on is the testamentary intention at the time the Will was executed, which here was on February 17, 2009.

In my view, the fact that the new Will was prepared by counsel on instructions from the client, sent by counsel with directions for its execution, arrangements made to have it executed and witnessed (albeit by only one person here), and then returned to counsel for safekeeping, all adds up to persuasive evidence that the writing embodies the testamentary intentions of the deceased.

This is further reinforced by the complementary nature of the new Will and the Trust, and the consistent testamentary intention traced from the 2003 Will to the 2009 testamentary documents relating to the cash bequests to the respondents. [ 30 ] There is no evidence that the testatrix did or said anything subsequently to displace that intention and it cannot be inferred otherwise by inattention over the passage of time.

CONCLUSION [ 31 ] Accordingly, I find that the revised Will executed on February 17, 2009 (as complemented by the Trust) represents a deliberate or fixed and final expression of the intention of Ms. Sweeney Cunningham to dispose of her property upon her death as therein specified. The application is therefore granted. [ 32 ] I will leave it to counsel in the first instance to try to reach agreement on costs, failing which I would ask that written submissions be made to the court within 30 days of this judgment. J.