Poirier v. Broussard, 2017 NSSC 74

SUPREME COURT OF Nova Scotia Citation: Poirier v. Broussard , 2017 NSSC 74 Date: 2017-03-23 Docket: Hfx No. 445430 Registry: Halifax Between: Linda Anne Poirier, as personal representative of the Estate of the late John Joseph Broussard Applicant v. Sheila Desjardins Broussard Respondent Library Heading Judge: The Honourable Justice James L. Chipman Heard: March 7, 2017, in Halifax, Nova Scotia Final Written Submissions: March 10, 2017 Written Decision: March 23, 2017 Subject: Wills and estates.

Interpretation of a will.

Summary: John Joseph Broussard died on December 14, 2014, and Probate was granted on March 9, 2015. One of Mr. Broussard’s sisters and a beneficiary under his will, Sheila Desjardins Broussard, previously challenged the will but subsequently adjourned her legal matters. On October 6, 2016, the Estate filed an Application to determine the below issues. Issues: 1. Whether an agreed upon percentage (41%) applies to a Toronto-Dominion Bank or Street Capital/Computershare mortgage payout owing by the Estate to Ms. Broussard; and 2. whether an agreed upon amount ($3,429.40) owing by Ms.

Broussard to the Estate should be reduced by up to a maximum of four months of a $370 monthly mortgage payment. Result: [ 1 ] The Court found on a balance of probabilities that the correct mortgage with the Toronto- Dominion Bank is contained in Mr. Broussard’s will. Accordingly, the proper amount owing by the Estate to Ms. Broussard is $9,692.45. In addition, the Court found on a balance of probabilities that the Estate does not owe any monthly mortgage payments to Ms. Broussard. [ 2 ] Given the determination on the issues, the Estate owes the Respondent $9,692.45.

From this amount, $6,420.00 should be subtracted (see para. 7 of The Notice of Objection wherein the Respondent acknowledges this debt owing). Further, the Court was satisfied that the Respondent owes $3,429.40 representing an overpayment of expenses. Factoring in these three amounts, the Court ordered that the Respondent owes the Applicant, pursuant to s. 79 of the Probate Act , $156.95. In addition to the above amount, the Court ordered, pursuant to Tariff C, $2,000 costs payable by Ms. Broussard to the 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: Poirier v. Broussard , 2017 NSSC 74 Date: 2017-03-23

Docket: Hfx No. 445430 Registry: Halifax Between: Linda Anne Poirier, as personal representative of the Estate of the late John Joseph Broussard Applicant v. Sheila Desjardins Broussard Respondent Judge: The Honourable Justice James L. Chipman Heard: March 7, 2017, in Halifax, Nova Scotia Final Written Submissions: March 10, 2017 Counsel: Philip Whitehead and Thomas Dulong, for the Applicant Richard A. Bureau and Kate Royal-Preyra, for the Respondent By the Court: Introduction [ 3 ] John Joseph Broussard died on December 14, 2014, and Probate was granted on March 9, 2015. On November 12, 2015, one of Mr.

Broussard’s sisters and a beneficiary under Mr. Broussard’s will, Sheila Desjardins Broussard (the Respondent in this matter), filed a Notice of Application, seeking an order that Mr.

Broussard’s will be declared invalid and: “that the Estate of John Joseph Broussard be required to complete the deceased’s agreement that he would pay 41% of the outstanding mortgage on the property at 6 Forrest Avenue, Halifax, Nova Scotia, B3M 1M7 (PID# 250191) on the grounds of quantum meruit and that it would create an unjust enrichment to the Estate of John Joseph Broussard if the agreement is not completed on his behalf.” [ 4 ] The matter was scheduled to be heard February 10 and 11, 2016; however, Ms. Broussard requested an adjournment.

The adjournment was granted with $1,000 costs (in any event of the cause) ordered payable to the Estate (the Applicant in this matter) by order issued March 9, 2016. [ 5 ] On May 5, 2016, Ms. Broussard amended her Notice, seeking further relief. The Estate filed a Notice of Objection on January 26, 2016, and an Amended Notice of Objection on June 7, 2016. [ 6 ] The matter was scheduled to be heard on June 28, 2016; however, on June 27 Ms. Broussard filed a Notice of Discontinuance. By order issued August 2, 2016, Ms.

Broussard was ordered to pay $5,233.80 costs forthwith to the Estate. [ 7 ] On August 31, 2016, Ms. Broussard paid the two costs orders. [ 8 ] On October 6, 2016, the Estate filed the current Application and on February 15, 2017, Ms. Broussard filed a Notice of Objection. Issues [ 9 ] The parties agree this Application concerns two outstanding issues: 3. whether an agreed upon percentage (41%) applies to a Toronto-Dominion Bank or Street Capital/Computershare mortgage payout owing by the Estate to Ms. Broussard; and 4. whether an agreed upon amount ($3,429.40) owing by Ms.

Broussard to the Estate should be reduced by up to a maximum of four months of a $370 monthly mortgage payment. Evidence Received [ 10 ] The Estate relied on Linda Anne Poirier’s affidavits of January 26, June 7 and October 6, 2016, along with the affidavit of John G. Cooper, Q.C., filed January 27, 2016.

[ 11 ] Ms. Broussard relied on her affidavits filed November 12, 2015, April 14, 2016 and February 15, 2017. [ 12 ] All three affiants were cross-examined and there was limited re-examination. No exhibits were tendered other than the exhibits appended to the affidavits. Discussion of Issue 1 - Whether an agreed upon percentage (41%) applies to a Toronto-Dominion Bank or Street Capital/Computershare mortgage payout owing by the Estate to Ms. Broussard. [ 13 ] The amount owing on the Toronto-Dominion Bank mortgage at the time of Mr. Broussard’s death was $23,640.13. Forty-one percent of $23,640.13 is $9,692.45. Ms.

Broussard had a First Line mortgage with an opening principal balance, as of April 28, 2010, of $161,440. This mortgage was paid out in August, 2010, and replaced by a mortgage Ms. Broussard took out with Computershare Trust Company of Canada on August 18, 2010, for a principal amount of $175,000. Six months following Mr. Broussard’s death (June 15, 2015), this mortgage had a balance owing in the amount of $158,859.09. Forty-one percent of $158,859.09 is $65,132.23. The date of six months post Mr. Broussard’s death is suggested by the Respondent on account of Mr. Broussard’s will (para.

III(b)(i)) which stipulates the Estate would pay six months’ expenses after he died. [ 14 ] Given the above, it is apparent that the Court’s determination on this issue will result in a balance owing by the Estate to Ms. Broussard of either $9,692.45 or $65,132.23 Applicant’s Position [ 15 ] The Estate takes the position that the correct mortgage is the one referred to in Mr. Broussard’s will, which specifies that the 6 Forrest Avenue property is encumbered by a mortgage in favour of the Toronto-Dominion Bank.

The Applicant refers to affidavit evidence and their February 27, 2017 brief outlines the following, in support of the Estate’s position: 1. Mr. Broussard received a large settlement of money prior to the events at issue and had the liquid assets necessary to buy out another quarter share ($65,000) of his late mother’s property, permitting him to won one half of the property free and clear; 2. Mr. Broussard withdrew approximately $65,000 from his investment account on November 9, 2010. There is no other large expense to account for that money’s withdrawal; 3. It is not logical that Mr.

Broussard would have agreed to 41% of a $175,000 mortgage (Computershare/Street Capital/First Line), totaling $71,750. This is close to $7,000 over what was necessary for him to own a clear half share, and again he had the liquid assets to pay his share free and clear and appears to have done so; 4. Mr. Broussard loaned the Respondent $30,000 per the promissory note dated March 11, 2010. This was prior to the alleged agreement regarding the mortgage. The Respondent agrees she continues to owe the Estate $6,420.00 on this note. This points to the Respondent’s impecuniosity compared to Mr.

Broussard’s, and further supports the above conclusions; 5. We suspect, although do not have the information to verify, that the Respondent personally required the funds in excess of the $130,000 necessary to pay out the two other sisters, i.e. $45,000 ($175,000-$130,000). This assumes the $65,000 withdrawn by Mr. Broussard did not go to this end. If it did as we believe, the mortgage obtained by the Respondent is some $105,000 over top of what was necessary to pay out the two other sisters; 6.

The Respondent indicates the Toronto-Dominion Bank Mortgage in the amount of $25,000 was necessary for repairs to the home. Repairs to the home would logically be something Mr. Broussard may have agreed to pay towards as is reflected in the Will, as it would benefit both of their shares in the home; 7. Mr. Cooper, the lawyer who prepared both the Wills of Mr. Broussard and the Respondent, is adamant and particularly at paragraph 10 of his Affidavit filed on January 27, 2016 that the correct mortgage was referenced; and 8.

The Respondent’s evidence is largely self-serving over her three affidavits, consisting of repeated assertions regarding the agreement she attributes to Mr. Broussard, with scarce independent third party documentation. As an example, she has not provided a breakdown of how the $175,000 was disbursed, including transaction records. I.e. $65,000 to one sister, $65,000 to the other, etc. [ 16 ] In addition to the substantive arguments, the Estate takes the position that the relief sought by the Respondent must be requested through an application for Proof in Solemn Form.

The Estate refers to the Probate Act , SNS 2000, c. 31 and in particular sections 31 , 71 and 79 as well as subsection 71 of the Probate Court Practice, Procedure Forms and Regulations and says that the Respondent has not made a proper application in compliance with the applicable statute and regulations. Respondent’s Position [ 17 ] With respect to the procedural hurdles raised by the Estate, Ms.

Broussard emphasizes s. 66(1) of the Probate Act , which reads: The court shall adjudicate each claim either on the settlement of the estate or such earlier date as the court, on the application of the personal representative or the claimant, determines. [ 18 ] The Respondent also relies on Regulations 64(3)(

a) and 66(1). It is her position that the effect of these provisions is that the Court has the discretion to deal with the contentious matters raised in the Application and Notice of Objection. [ 19 ] In her brief filed March 2, 2107, Ms. Broussard takes the following substantive position: The Respondent respectfully submits that the deceased was bound by an agreement to assume responsibility for 41% of the Street Capital/Computershare Mortgage. The necessary evidence to support that the incorrect mortgage was referenced in John Joseph Broussard’s Last Will and Testament has been outlined in the Respondent’s Notice of Objection filed February 15, 2017, and Affidavits

filed February 15, 2017, April 14, 2016, and November 12, 2015. The agreement between the deceased and the Respondent concerns the accounting of the Estate and the whole property that the deceased was possessed of or entitled to. On that basis, the Respondent’s claim that a payment of $9,692.45 by the Estate does not satisfy the remaining obligations/gifts to the Respondent under the Last Will and Testament should succeed as an objection to the current Application. [ 20 ] In her latest affidavit Ms. Broussard sets out her version of events as follows: 67.

Over the months that our Wills were being prepared, I reviewed and commented on many drafts. 68. I had made so many changes that I lost track of some of them and did not think to ensure that they were correct on the final drafts of the Wills. 69. I had trusted that, as a lawyer, Mr. Cooper would keep track of the revisions I had requested and would implement them. 70. Unfortunately, I did not follow up on ensuring that the final version of the Wills included specific and explicit reference to the mortgage with First Line, Computershare or Street Capital. 71.

As noted above, our Wills were intended to mirror each other, and I was Mr. Cooper’s primary contact regarding both Wills. 72. Both Wills were to have included a reference to John and me sharing responsibility ( 41% and 59%, respectively) for the Street Capital/Computershare Mortgage. 73. In an in-person meeting at Mr. Cooper’s office, I told Mr. Cooper that John was not involved or responsible for the TD Canada Trust line-of-credit. 74. Although I informed him of this, Mr. Cooper kept a reference to a Toronto Dominion Bank mortgage in both Wills.

He told me that the TD Canada Trust line-of-credit would have to be paid out before the Street Capital/Computershare Mortgage. 75. Because Mr. Cooper is a lawyer, I trusted that he would draft the Wills properly and per John’s and my instructions. 76. My understanding was that John’s and my Wills would accurately reflect our responsibilities for the Street Capital/Computershare Mortgage. 77.

I do not understand legal terminology, and I was under the impression that the term “in favour of” regarding the mortgages meant that the TD Canada Trust line-of-credit would have to be paid out before the Street Capital/Computershare Mortgage. 78. This is why I was not concerned when the reference to a “Toronto Dominion Bank” mortgage was still in the Wills when John and I signed them. 79. My understanding was not that this was a reference to the mortgage for which John had any responsibility.

I believe, based on my discussions with John, that he was also under the impression that the Will directed that 41% of the Street Capital/Computershare Mortgage would be paid off from his Estate. 80. My understanding was that John fully intended to meet his responsibility for 41% of the Street Capital/Computershare Mortgage and that he believed his Will would ensure that this was done. Analysis and Disposition [ 21 ] After reviewing all of the affidavit and viva voce evidence, I am of the view that Mr. Cooper’s evidence is most critical in my determination of which is the proper mortgage. In his affidavit, Mr.

Cooper deposes as follows at para. 6: Paragraph III(b)(

i) of John Joseph Broussard’s will reads as follows: “6 Forrest is encumbered by a mortgage in favour of The Toronto-Dominion Bank, which mortgage is presently in my sister Sheila’s name. By agreement with my sister Sheila, I am presently responsible for 41% of the mortgage and she is presently responsible for the payment of 59%, which percentages may change in the future. My sister Sheila and I also share the following expenses associated with running 6 Forrest Avenue, namely water, electricity, fuel, telephone and cable (the “house expense”).

I direct my Trustee to pay out my 41% (or such other percentage as my sister and I have agreed upon if they change after I have signed this, my Will) of the balance owing, if any, on the aforesaid mortgage or any replacement mortgage within two months of my death.” [ 22 ] Mr. Cooper then concludes his affidavit, as follows: 9. I understand and do verily believe that Sheila Broussard alleges that the mortgage reference in the aforesaid paragraph III(b)(

i) of John Joseph Broussard’s will is incorrect and should have referred to a mortgage in favour of Computershare Trust. 10. All of the drafts sent to Sheila Broussard for review contained the reference to The Toronto-Dominion Bank mortgage and, in fact, the will which she signed contains that reference, as does the will which John Joseph Broussard signed. At no time did Ms. Broussard change that reference or, to my knowledge did she advise me that the reference should have been to Computershare Trust. [ 23 ] On cross-examination, Mr.

Cooper was referred to several pages of his 127-page file, attached as the sole exhibit to his affidavit. Of all of the page references, 61 garnered the most time and attention. Page 61 is page 4 of an 8 page draft will in respect of Ms. Broussard. Under the heading “Real Estate At 6 Forrest Avenue, Halifax,” appears a paragraph very similar to the above-quoted paragraph III(b)(

i) of Mr. Broussard’s will, except that it obviously pertains to Ms. Broussard’s will. Importantly, the typed paragraph reads in part, “… 6 Forrest is encumbered by a mortgage in favour of the Toronto-Dominion Bank, which mortgage is presently in my name…” To the left of this sentence in the margin appears an arrow and the words “Street Capital/TD” in Ms. Broussard’s printing.

[ 24 ] During cross-examination, Mr. Cooper agreed that he took directions for the drafting of both wills from Ms. Broussard. He agreed that this was unusual and that his office received a lot of correspondence from Ms. Broussard. Further, Mr. Cooper acknowledged that at the behest of Ms. Broussard there were numerous drafts or drafting changes. [ 25 ] On cross-examination, it was put to Mr. Cooper that the wills should have been changed to Street Capital but this never got done, to which Mr. Cooper responded that this was a “possible mistake”. On re-direct examination, Mr.

Cooper was asked about the likelihood of such a mistake. He responded by pointing out that Ms. Broussard would have had many opportunities to correct this but that this did not occur, albeit it was Mr. Cooper’s view that Ms. Broussard had “assiduously” gone through the wills. He made this observation from the sheer volume of faxed changes and emailed notes received from Ms. Broussard. [ 26 ] When I review the entirety of Mr. Cooper’s file, it is apparent that Ms. Broussard did indeed deal with her legal matters in an assiduous manner.

In this regard, the file is replete with emails, faxes, handwritten changes and comments from Ms. Broussard. In the result, I have come to the overwhelming conclusion that had Ms. Broussard wanted a change in the wills from Toronto-Dominion Bank to another institution, she would have made this clear in her written dealings with Mr. Cooper. I would add that scrutiny of the file reveals such an intended change is anything but clear. Indeed, the margin note by the arrow does not state “First Line Mortgage” or “Computershare Trust Company of Canada” but rather, “Street Capital/ TD ” (my emphasis).

In my view, this margin note can hardly stand for the proposition that Ms. Broussard intended to change her will and her brother’s will to reflect a lending institution other than the Toronto-Dominion Bank. [ 27 ] My view becomes more emphatic when I consider the entirety of Mr. Cooper’s file, all of the affidavits and viva voce evidence. With respect to the latter, I found (as Mr. Bureau acknowledged during his closing remarks) that both Mr. Cooper and Ms. Poirier gave straightforward evidence. I would add that I found Mr. Cooper most credible.

He readily acknowledged an inability to recall certain aspects of the matter; however, when it came to his dealings with Ms. Broussard, he recalled she requested numerous changes. Perhaps not surprisingly, nothing along the lines of what Ms. Broussard deposed to in her latest affidavit (see para. 18 of this decision) was put to Mr. Cooper. [ 28 ] By way of conclusion of this issue, I would add that I did not always find Ms. Broussard to be a straightforward and credible witness.

For example, on cross-examination she was methodically stepped through her re-financing when she moved from the $161,440 First Line Mortgage to the $175,000 Computershare Trust Company of Canada mortgage. From Ms. Broussard’s answers, I did not gain the impression that she was immediately prepared to acknowledge the obvious point that the increased debt was occasioned by her financial needs and not her brother’s. Further, she was not prepared to concede that any interest rate savings would have been denied to Mr.

Broussard, as notwithstanding the clear interest rate drop, his monthly responsibility ($370) went unchanged. [ 29 ] In all of the circumstances, I find on a balance of probabilities that the correct mortgage with the Toronto-Dominion Bank is contained in Mr. Broussard’s will. Accordingly, the proper amount owing by the Estate to Ms. Broussard is $9,692.45. Given my substantive determination, it is not necessary to address the procedural issues raised by the Estate. Discussion of Issue 2 - Whether an agreed upon amount ($3,429.40) owing by Ms.

Broussard to the Estate should be reduced by up to a maximum of four months of a $370 monthly mortgage payment. Discussion, Analysis and Disposition [ 30 ] Once again, Mr. Broussard’s will at para. III(b)(

i) states that the Estate is required to pay his share of house expenses for six months after his death. The precise wording is: … I direct my Trustee to pay my share of the house expenses for a period of six months after my death (after the six month period, Sheila shall be responsible for the payment of all expenses relating to 6 Forrest). [ 31 ] Ms. Broussard says these expenses included mortgage payments, whereas the Estate argues mortgage payments should be excluded. Ms.

Broussard initially sought six months (January – June, 2015) of mortgage payments but in her counsel’s closing submissions he acknowledged the first two months of mortgage payments were paid by the Estate. In this regard, the last two pages of exhibit M of Ms. Broussard’s February 15, 2017 affidavit contains receipts dated January 28 and February 4, 2015, which represent proof of mortgage payments received from the Estate by Ms. Broussard. In the result, I am left to determine whether up to $1,480 ($370 x 4 months of payments) is owing by the Estate to the Respondent. [ 32 ] Returning to Mr.

Broussard’s will, “house expense” is actually a defined term as earlier in the same para. III(b)(i), the following appears: My sister Sheila and I also share the following expenses associated with running 6 Forrest Avenue, namely water, electricity, fuel, telephone and cable (the “house expense”). [ 33 ] Accordingly, based on my review of the will and the entirety of the evidence, it is apparent there is nothing to support the Respondent’s contention that household expenses should be read to include mortgage payments.

Indeed, scrutiny of the record assists with my finding that mortgage payments should not be included. For example, earlier iterations of the wills of both Mr. Broussard and the Respondent define house expenses. Consistent with Mr. Broussard’s final will, in all instances, these household expenses are spelled out to consist of “water, electricity, fuel, telephone and cable”. There is no written documentation whatsoever to support Ms. Broussard’s argument that mortgage payments should be included in such expenses. [ 34 ] In addition to the above, there is a promissory note signed by Mr.

Broussard on December 7, 2010 (p. 79 of Mr. Cooper’s exhibited file) which states: For VALUE RECEIVED, the undersigned promises to pay to SHEILA BROUSSARD, 6 FORREST AVENUE, HALIFAX, NOVA SCOTIA, B3N 1M7 the sum of THREE HUNDRED AND SEVENTY DOLLARS ($370.00) from JOHN BROUSSARD FOR THE PERIOD JUNE 1, 2010 TO AND INCLUDING JUNE 1, 2015 AS AN AUTOMATIC TRANSFER FROM HIS ACCOUNT HELD AT

THE SCOTIABANK, FAIRVIEW, HALIFAX, NS TO THE HOUSEHOLD ACCOUNT AT PRESIDENT CHOICE FINANCIAL, SAVINGS ACCOUNT […] ON THE 28 TH DAY OF EACH MONTH UP TO AND MAY 28 2015. IF CIRCUMSTANCES CHANGE IN THE NOTED PERIOD OF TIME OR IF JOHN’S SHARE OF THE MORTGAGE IS PAID IN FULL, THEN THIS NOTE WILL BE DEEMED NUL AND VOID. [ 35 ] The circumstances did indeed change when Mr. Broussard died on December 14, 2014. I have found that the 41% payout of the Toronto-Dominion Bank mortgage is calculated as at the date of Mr. Broussard’s death.

To go beyond this date with mortgage payments would constitute double recovery from the Estate by Ms. Broussard. In the result, it is my finding on a balance of probabilities that the Estate does not owe any monthly mortgage payments to Ms. Broussard. Amount Owing [ 36 ] Given my determination on the issues, the Estate owes the Respondent $9,692.45. From this amount, $6,420.00 should be subtracted (see para. 7 of The Notice of Objection wherein the Respondent acknowledges this debt owing).

Further, I am satisfied on the evidence (and math) that the Respondent owes $3,429.40 representing an overpayment of expenses. Factoring in these three amounts, I hereby order that the Respondent owes the Applicant, pursuant to s. 79 of the Probate Act , $156.95. Costs [ 37 ] In addition to the above amount, I order pursuant to Tariff C, $2,000 costs payable by Ms. Broussard to the Estate. In so doing, I decline the Applicant’s request to multiply this amount by 2 as the Applicant was previously successful in achieving costs in excess of $6,000.

Given the history, I do not believe it appropriate that the Respondent be penalized for opposing the Application in the manner she did. Consistent with what I stated at the outset of the hearing, I regard the Respondent’s approach as within the spirit of Rule 1.01. To my mind, the one-day hearing amounts to a just, speedy and inexpensive determination of this matter. Chipman, J.