Hopgood Estate (Re), 2015 NSSC 351

SUPREME COURT OF Nova Scotia Citation: Hopgood Estate (Re), 2015 NSSC 351 Date: 2015-12-01 Docket: Hfx. No. 443265 Probate No. 58689 Registry: Halifax IN THE COURT OF PROBATE FOR NOVA SCOTIA IN THE ESTATE OF CORINNE MABEL HOPGOOD, Deceased DECISION Judge: The Honourable Justice Allan P. Boudreau Heard: Oral Decision: Written Decision: December 1, 2015 in Halifax, Nova Scotia December 1, 2015 December 7, 2015 Counsel: Dennis James, for Applicant Jessica Lyle, for the Estate of Corinne Mable Hopgood Larry Graham, Q.C.; Natalie J.

Woodbury; and Andrew Nicol for The Salvation Army INTRODUCTION: [ 1 ] Nancy Unser has made a Motion to extend the time for contesting the validity of the Will of the late Corinne Mable Hopgood, some four years after Probate granted. [ 2 ] The Motion is opposed by one of the Residual Beneficiaries, The Salvation Army. This Residual Beneficiary has also filed an objection to certain payments made by the Estate’s Executor, Christopher Hopgood; however, that is for another day. BACKGROUND: [ 3 ] Corinne Mabel Hopgood executed her Last Will and Testament on August 22, 2010, at her home in Halifax.

This was done in the presence of her then lawyers, Paul Goldberg, of Cox and Palmer (now deceased) and Paul Thompson, also a lawyer at Cox and Palmer. [ 4 ] On August 23, 2010, Mr. Thompson executed a memorandum To File attesting to Mrs. Hopgood’s capacity to execute the said Will. This memorandum is attached to the Affidavit of Tanya Butler, of Cox and Palmer, who is the former Proctor of Mrs. Hopgood’s Estate. [ 5 ] Mrs. Hopgood passed away on December 5, 2010. Probate of her Will was granted on January 14, 2011 to the by then sole executor, Christopher Hopgood. The other co-executor named in the Will, Ms.

Unser, resident of Florida, had renounced her right to act as co-executor.

[ 6 ] The Estate had considerable value – approximately $500,000 in real estate and approximately $5,000,000 in liquid assets. The Will left considerable bequests to Ms. Unser and her husband and to other nieces and nephews and other relatives, totalling some $2,095,000. Those bequests were distributed to the various beneficiaries. [ 7 ] The Residue of the Estate was to be divided amongst the four charities initially named in the Will: 1. Feed Nova Scotia 2. Parker Street Food and Furniture Bank 3. The Salvation Army 4.

Bide Awhile Animal Shelter And a fifth charity, Symphony Nova Scotia, appears to have been added later by Mrs. Hopgood in her handwriting. [ 8 ] There is no dispute between any of these five Residual Beneficiaries and they all agree to share equally. [ 9 ] On October 31, 2011, some nine months after the Grant of Probate of the August 22, 2010 Will, Ms. Unser, who along with her husband had been bequeathed and received a total of $500,000, wrote to Christopher Hopgood, claiming a further $500,000 for Love, Service and Loyalty to the late Mr. and Mrs.

Hopgood. [ 10 ] In that correspondence to Christopher Hopgood, Ms. Unser also expressed a significant dissatisfaction with the Will and the amount of money she and her family had received. She expressed a concern that the late Mrs. Hopgood, “was too tired and too old to be making decisions”. [ 11 ] In the October 31, 2011 letter, Ms. Unser went as far as stating that if her demands were not met, she would have to consider “legal action”. That was four years ago. [ 12 ] The Executor, Christopher Hopgood, paid further sums of $348,000 to Ms. Unser, $140,000 to Ms.

Unser’s husband, $140,000 to a relative (David Hopgood) and $140,000 to himself totaling some $768,000. Those are in addition to the bequests contained in the Will. However, the Executor declined to pay Ms. Unser’s claim for the additional $500,000. Christopher Hopgood said to Ms. Unser that if she was not satisfied with his response, and I quote, “I suggested to her that she hire a lawyer if she wished to pursue the matter”. (See paragraph 11 of Mr. Hopgood’s Affidavit sworn October 27, 2015). [ 13 ] Ms.

Unser now claims that she did not address her mind to contest the validity of the August 22, 2010 Will until August of 2015. She says this is because she had been told by the late Paul Goldberg back in 2011 that, if the August 2010 Will could not be found, Mrs. Hopgood’s Estate would be an “intestacy” and go to her next of kin. She says she only found out this August 2015, that that would not be the case if there was an earlier valid will. She says that is the reason she only now wants to apply to contest the validity of the August 2010 Will. [ 14 ] I can conceive of Mr.

Goldberg making the comment allegedly attributed to him as, say, an “incentive” to locate the original Will. Nevertheless, it is what occurred after that which is most germane to this Motion. [ 15 ] Needless to say, Ms. Unser much prefers the terms of an earlier 2007 Will. However, Ms. Unser agrees that any contest of the August 22, 2010 Will can only affect the undistributed assets of the Estate, which I understand to be approximately $150,000.

However, that undistributed residue could increase by approximately $800,000 if some of the payments to the Executor, the Unsers, etc., apparently unauthorized by the Will, have to be repaid to the Estate. Those payments are contested by The Salvation Army. AUTHORITIES: [ 16 ] The authorities governing Ms. Unser’s request for an extension of time to contest the validity of a will are straight forward. [ 17 ] The Court’s jurisdiction to entertain the present Application is found in Section 31(2) of the Probate Act.

This is a discretionary power where a court “may”, “where it considers it just” have a will proven in solemn form after the six months deadline has expired. [ 18 ] I subscribe and refer to the factors outlined by Justice Muise of this Court in his decision in Scott v. Estate of Everett Daryl Smith , rendered on January 14, 2015. Counsel for Ms. Unser agrees that Justice Muise’s decision accurately outlines the factors to be considered on this Motion.

Justice Muise stated that, when determining what is just in an application of this nature, the burden is on the Applicant to meet, “a very important threshold requirement” by advancing “an arguable position”. He lists six important factors to be considered:

(1) The length of the delay. In the present case the delay is in excess of four years.

(2) The reasons or explanation for the delay. In the present case, the reasons advanced by Ms. Unser are “flimsy” at best. It is easy to say it was because of what Mr. Goldberg said some four years ago. He is not here to be questioned and the records at his former law firm do not in any way support her contention. Moreover, Ms. Unser was advised by the Executor in the fall of 2011 that if she contested the Will she should get legal advice. She even threatened possible legal action in her October 31, 2011 letter to the executor. She also had told Mr. Goldberg in 2011 that she was not happy with the Will.

(3) Whether the Application was made promptly after the discovery of the missed deadline. This is not really applicable in this case because there is no evidence that the deadline issue was ever considered by Ms. Unser.

(4) The presence or absence of prejudice. Not only do memories fade over time, but, in the present case, the person accused of providing

erroneous advice is now deceased and this information cannot be confirmed. There is no record of it anywhere. It is too easy to blame the lack of action on a deceased person, without any tangible evidence being available.

(5) The apparent strength or merit of the proposed application. Here I have to be careful because I am not, on this Motion, deciding the issue of Proof in Solemn Form. Nevertheless, the facts as we know them, which are overwhelmingly uncontroverted, are pertinent to the minimum “threshold test” which the Applicant has to meet. [ 19 ] However, I find that the present Application itself has little merit for the reasons stated above. I find that the proposed Application to contest the validity of the August 2010 Will itself has practically no factual foundation.

Notes and ruminations as we have here, prior to the execution of the final testamentary document, cannot provide an evidentiary basis beyond mere speculation. [ 20 ] We have the unrefuted evidence of Paul Thompson regarding the competency of Mrs. Hopgood to execute the Will of August 22, 2010. There is not a shred of evidence to indicate otherwise. Granted there are notes found in the house after Mrs. Hopgood’s death, but at most those could indicate issues she was considering, but the Will is her final decision. [ 21 ] By all the evidence, which is uncontradicted, Mrs.

Hopgood read and understood her Will and signed it. She initialled every page in the presence of two lawyers. [ 22 ] As pointed out this morning, a very telling fact that Mrs. Hopgood knew what she was doing and that she wanted to leave the residue of her Estate to various charities is that she apparently, in her handwriting, added a fifth charity to the list, namely Symphony Nova Scotia, sometime after the Will was signed. [ 23 ] Based on the facts as known, I find that Ms. Unser has clearly failed to meet even a basic threshold for an Application to challenge the validity of the August 22, 2010 Will.

The known facts, as I said, are basically uncontradicted. [ 24 ] With regard to point

(6) Good Faith and intention of the Applicant to make the Motion within the deadline, this issue was not pressed by the Respondent. However, there can be no question that Ms. Unser was not pleased with the bequests she received under the Will. She felt she and her family should have received the bulk of Mrs. Hopgood’s Estate. This is readily apparent from her October 31, 2011 letter to the Executor, Christopher Hopgood. But that in itself does not invalidate an apparently otherwise valid testamentary document. Ms.

Unser was apparently hoping to convince the Executor to provide more of the Estate funds by alluding to take legal action if her demands were not satisfied. I find she was alive in 2011 to the fact she may require legal advice to contest the Will. CONCLUSION: [ 25 ] In the final analysis, Ms. Unser has failed to satisfy this Court that she has met an important threshold test by advancing an arguable position. I am not persuaded, on a balance of probabilities, that it is just to extend the time for contesting the validity of Mrs.

Hopgood’s August 22, 2010 Will, in the circumstances of this case. [ 26 ] The Motion is therefore dismissed. Mr. Graham to draft an order as consented to by all three parties. COSTS: [ 27 ] The question of costs will be decided at a later date if Counsel cannot agree. Boudreau, J. (Allan)