Irving v. Irving Estate, 2016 NSSC 188

SUPREME COURT OF Nova Scotia Citation: Irving v. Irving Estate , 2016 NSSC 188 Date: 2016-07-19 Docket: Pic. No. 436534 Registry: Pictou Between: William Charles Irving Applicant v. Estate of Eileen Rose Irving, (as represented by Debra Mae Sharpe, Executrix of the Estate) Respondent LIBRARY SHEET Judge: The Honourable Justice N. M. Scaravelli Heard: June 22 nd , 2016, in Pictou, Nova Scotia Written Decision: July 19 th , 2016 Subject: Application under the Testators’ Family Maintenance Act

Summary: Testatrix left residue of estate equally among four children excluding the applicant and leaving him $1,000. Issue: Did Testatrix breach a moral duty to make adequate provision for adult child? Result: Testatrix’s reasons for provision regarding the applicant were valid and rational. The Applicant failed to establish a clear case of inadequate provision in the Will of the Testatrix. SUPREME COURT OF Nova Scotia Citation: Irving v. Irving Estate , 2016 NSSC 188 Date: 2016-07-19 Docket: Pic . No. 436534 Registry: Pictou Between: William Charles Irving Applicant

v. Estate of Eileen Rose Irving, (as represented by Debra Mae Sharpe, Executrix of the Estate) Respondent Judge: The Honourable Justice N. M. (Nick) Scaravelli Heard: June 22 nd , 2016, in Pictou, Nova Scotia Counsel: E. Anne MacDonald for the Applicant Jay Matheson for the Respondent, for the Respondent [ 1 ] This is an application by William Charles Irving under section 3(1) of the Testators’ Family Maintenance Act , R.S.N.S. 1989, c.465 ( the Act) . BACKGROUND [ 2 ] The late Eileen Rose Irving died testate on August 10 th , 2014. Her husband predeceased her in August 2006. On November 20 th , 2006 Mrs.

Irving (testatrix) executed her last Will. The Will was probated on August 22 nd , 2014. Under the Will, the testatrix made specific bequests of $500 to each of her 10 grandchildren and $1,000 to her son William Charles Irving, the applicant. The residue of her estate was left to her other four children, Kathy MacLean, Ronald Irving, Judy MacIntosh and Debra Sharpe. Debra Sharpe was named the executrix and trustee under the Will. The estate has been valued at $135,872.

THE LAW [ 3 ] Section 3(1) of the Act provides: Where a testator dies without having made adequate provision in his will for the proper maintenance and support of a dependant, a judge, on application by or on behalf of the dependant, has power, in his discretion and taking into consideration all relevant circumstances of the case, to order that whatever provision the judge deems adequate be made out of the estate of the testator for the proper maintenance and support of the dependant. [ 4 ] The applicant is a dependant under the Act by virtue of being a child of the testator.

Section 5 of the Act provides:

(1) Upon the hearing of an application made by or on behalf of a dependant under subsection (1) of

Section 3, the judge shall inquire into and consider all matters that should be fairly taken into account in deciding upon the application including, without limiting the generality of the foregoing, (

a) whether the character or conduct of the dependant is such as should disentitle the dependant to the benefit of an order under this Act ;

(

b) whether the dependant is likely to become possessed of or entitled to any other provision for his maintenance and support; (

c) the relations of the dependant and the testator at the time of his death; (

d) the financial circumstances of the dependant; (

e) the claims which any other dependant has upon the estate; (

f) any provision which the testator while living has made for the dependant and for any other dependant; (

g) any services rendered by the dependant to the testator; (

h) any sum of money or any property provided by the dependant for the testator for the purpose of providing a home or assisting in anybusiness or occupation or for maintenance or medical or hospital expenses.

(2) Upon the hearing of an application under subsection (1) of

Section 3, the judge, in addition to any evidence adduced by the partiesappearing, may direct evidence to be given in respect of any matter that the judge considers relevant.

(3) Upon the hearing of an application under subsection (1) of

Section 3, the judge may receive any evidence the judge considersrelevant of the testators reasons, as far as ascertainable, for making the dispositions made by his will, or for not making provision orfurther provision, as the case may be, for a dependant, including any statement in writing signed by the testator. R.S., c. 465, s. 5. [5] The issue of adequate provision for family members in a testator’s will has been judicially considered on many occasions overthe past number of years. Cases submitted by counsel and considered include: Zwicker Estate v. Garrett (NS CA),[1976] N.S.J. 20 (NSCA); Tataryn V. vs.

Tataryn Estate (SCC), [1994] 2 S.C.R. 807; David v. Beals Estate 2015 NSSC288. These authorities and cases referred to therein establish that: 1. Testators have the absolute freedom to dispose of their property in a manner they choose subject to any statutory limitations. 2. The court should not, except in clear and definite cases, prevent testators from disposing of their estates as they please. In thisregard an applicant bears the civil burden of proof on a balance of probabilities. 3. No one factor listed in section 5(1) of the Act is to be looked at in isolation.

The court must look at all relevant facts andsurrounding circumstances to determine whether a testator breached a moral duty to make adequate provision for an adult child. 4. The imposition of a moral duty does not require that all family members be treated equally. Position of Parties [6] The applicant submits there was nothing in his character and conduct that should disentitle him from the benefit of the Act. That, after payment of bequests and expenses, the residue of the estate would amount to approximately $100,000.

The bequest of $1,000demonstrates the testatrix failed to meet her legal or moral obligations. [7] The respondent submits there is no relevant evidence that justifies the court’s interference with Mrs. Irving’s testamentaryfreedom to dispose of her property in the manner she had chosen. Being a child does not lead to a prima facie right to a larger share ofthe estate’s residue. Evidence [8] The hearing proceeded by way of affidavit evidence and cross examination. The applicant and his spouse Shirley Irving filedaffidavits.

Responding affidavits were filed by Kathy MacLean, Ronald Irving and his spouse Patricia Irving, Judy MacIntosh and DebraSharpe. The respondent’s estate produced an affidavit sworn by Ian MacLean, solicitor who prepared the Last Will. An affidavit swornby Kerri-Lee Boudreau, daughter of the applicant was also filed on behalf of the respondent estate. All affiants were cross-examinedwith the exception of Ian MacLean and Kerry-Lee Boudreau. [9] The applicant was estranged from his parents and siblings as early as 2001.

At that time the applicant and his daughter Kerri-Lee Boudreau resided with his spouse Shirley Irving and her two children approximately 5 kms from his parents home in rural PictouCounty. [10] The applicant sought marital advise from his parents due to the stress in his marriage arising from friction between his daughterand his spouse. The applicant and his spouse subsequently separated and, contrary to the advice of his mother, the applicant reconciledwith his spouse after approximately three months. His mother was of the view that the applicant had to choose between his daughter andhis spouse.

When the parties reconciled Kerri-Lee Boudreau moved out of the home. [11] The applicant’s mother made it known that, although he was always welcome in their home, his spouse was not. It was at thattime, the applicant ceased contact with his parents. The applicant’s reasoning was that if his spouse was not welcome, he feltunwelcome. He did, however, acknowledge being encouraged by his spouse to visit his parents.

[ 12 ] The applicant’s father passed away in 2006. He had been suffering from kidney failure and had been undergoing dialysis treatments, having been diagnosed in 2002. The applicant’s siblings were involved in assisting their parents during this time. I am satisfied that the applicant was aware that his father was very ill. Other than an occasional encounter at the local Co-op in Scotsburn, where his father met friends for coffee, the applicant did not contact or visit nor assist his parents during this period. [ 13 ] The applicant attended his father’s funeral and had an embracing encounter with his mother.

After the funeral and reception his mother invited both the applicant and his spouse back to her home for a family gathering. The applicant and his spouse did not make the visit. The applicant testified he had driven his uncle home from the funeral and spent three hours consoling him over his brother’s death. It was then too late to visit his mother. He did not call or contact his mother to explain. They never spoke again. [ 14 ] Several months after the death of her husband in 2006, Mrs. Irving met with her lawyer Ian MacLean and executed a new Will.

Her 1991 Will provided that the rest and residue of her estate be divided among all of her five children equally. The 2006 Will left the residue to her four children, equally leaving the applicant $1,000. [ 15 ] Ian MacLean’s affidavit attaches the following not regarding the change: Why Charlie? Charlie has not been to the house in seven years – he didn’t come to see his father when he knew he was dying. He did go to his father’s funeral but no contact since then. She wants to leave him a nominal amount of $1,000 – leaves it at that. ` [ 16 ] The applicant and his spouse moved to Newfoundland in 2007.

In 2014 the applicant’s mother was battling skin cancer and a brain tumor. While in palliative care she made requests through family to see the applicant. The applicant did not visit or communicate with his mother even though he was in the Pictou County area in 2014. The applicant did not attend his mother’s funeral. [ 17 ] In terms of his financial circumstances, the applicant and his spouse reside in their own home in Newfoundland. He is employed as a driving instructor. The applicant previously worked for a number of years as a truck driver, both long haul and short hauls and owned a business.

He is currently laid off as a driving instructor receiving EI and CCP but expects to be called back to work anytime as he is a permanent employee. He earned employment income of $46,000 per year for 2014 and 2015. Analysis [ 18 ] The applicant must establish relevant circumstances which can allow the court to intervene and deviate from the testatrix’s expressed intentions. In my view this requires the applicant to prove their relationship akin to the parent-child relationship the statute envisions would entail a level of moral obligation.

The court will not interfere except in “plain and definite cases” ( Zwicker Estate.) [ 19 ] The applicant has been self-sufficient over the last 30 years without any financial support from his parents. He owns his own home in Newfoundland and is currently employed earning approximately $46,000 per year. [ 20 ] The applicant has been effectively out of his parents and siblings’ lives since 2001. He unilaterally ceased contact at that time and did not offer comfort or support to his parents despite being requested to do so.

The reasons offered by the applicant for refusing contact or attempts to reconcile defy logic. [ 21 ] Under the circumstances, I find the testatrix’s reasons for altering her will in 2006 were valid and rational. Accordingly the applicant has not established a clear case of inadequate provision in the Will of the testatrix and the application is dismissed. [ 22 ] In the present case, there are no circumstances justifying payment of the applicant’s costs out of the estate. [ 23 ] The respondent is entitled to costs and I reserve jurisdiction in the event the parties are unable to agree. Scaravelli, J.