Sibley Estate v. Sibley

Sibley Estate v. Sibley Court Supreme Court Date 2026-04-30 Citation 2026 NSSC 142 Docket Hfx No. 544236 Judge/Registrar/Adjudicator Bodurtha, John P. (Honourable Justice) Document Type Decision Decision Content SUPREME COURT OF Nova Scotia Citation: Sibley Estate v. Sibley, 2026 NSSC 142 Date: 20260430 Docket: Hfx No. 544236 Registry: Halifax Between: Estate of Malcolm Earl Sibley Landlord v. Paul Douglas Sibley Tenant Decision Judge: The Honourable Justice John P. Bodurtha Heard: August 7, and October 17, 2025, in Halifax, Nova Scotia Final Written Submissions: November 7, 2025 Written Decision: April 30, 2026 Counsel: James A. Russell and Jessica A. Landry, for the Landlord Colin D. Bryson KC, for the Tenant By the Court: Introduction [1] The Applicant, Denyse Sibley, named as the personal representative in the Will of Malcolm Sibley alleges she has standing to bring this Application without a grant of probate and is entitled to the relief requested under the Overholding Tenants Act, specifically, an Order for Possession of the leased Property and return of the leased equipment under the Will. The Applicant also requests a judgement for the arrears of rent and an amount for use and occupation of the premises following termination of the lease. [2] The Respondent, Paul Sibley, takes the position that the Applicant does not have standing as the personal representative of the Will to commence a proceeding in court until a grant of probate is obtained. Facts [3] Pursuant to the Last Will and Testament of Malcolm Sibley (the “Will”) dated December 5, 2017, Denyse Sibley and Paula Sibley Fox were appointed as co-personal representatives of the estate. Malcolm Sibley (the “Landlord”) died on June 11, 2021. Paul Sibley (the “Tenant”) is an adult son of Malcolm Sibley. [4] A lease was signed between the Landlord and the Tenant with an effective date of November 1, 2020, for a 4-year term expiring on November 1, 2024 (the “Lease”). Denyse Sibley executed the Lease in her capacity as co-Attorney for the Landlord. [5] The Lease permitted Paul Sibley to rent the barn (“Leased Barn”) and to exclusively use the properties (“farm, pasturelands, and woodlands”) commonly known as 251 Wyse Road, Meagher’s Grant, Nova Scotia, and certain items of farm equipment present on the farm property. Paul Sibley then entered into possession of the Leased Barn. [6] Paul Sibley agreed to pay rent of $400 per month plus utilities, and applicable HST, to the Landlord. [7] The renewal clause in the Lease provided that if the Landlord did not object, on expiry of the initial 4-year term, the Lease would automatically renew for an additional term. [8] On April 27, 2023, Denyse Sibley, in her capacity as personal representative of the Estate gave notice that the term of the Lease would not be renewed and that the Lease term would end on November 1, 2024. [9] Paul Sibley has refused to vacate the Leased Barn and return the leased equipment. The Amendment to Ms. Sibley’s Status [10] There were two court appearances that resulted in further written submissions to address new issues raised by the Landlord. After the second appearance, I asked counsel for their position regarding the Landlord’s submission that “Denyse Sibley, as one of the two bare trustees holding the lands in question, had the authority to commence this proceeding even though the Declaration of Trust did not grant any authority to Ms. Sibley…” [11] The Landlord’s submission appears to admit that Ms. Sibley did not have the authority as a bare trustee to advance the Complaint, and instead advanced to the extent that probate is not necessary to commence a proceeding in this Court. In addition, the submissions sought leave to “add Denyse Sibley as executor for the estate of Malcolm Sibley as a party or if necessary for Denyse Sibley as executor to replace Denyse Sibley as trustee as the sole Complainant.” [12] Paul Sibley advised that he consents to Ms. Sibley’s motion to amend to add herself as Executor for the limited purpose of addressing whether probate needs to be opened for an estate to commence an action in this Court. [13] I am prepared to grant the motion for the limited purpose Paul Sibley consents to, even though there was no proper motion before the Court pursuant to the Civil Procedure Rules (“CPR”). Issue [14] Whether this Court can grant an Order for Possession pursuant to the Overholding Tenants Act despite Paul Sibley’s claim for possession under the Will. Legislation [15] The relevant section of the Overholding Tenants Act states: Complaint by landlord 3(1) If a tenant, after his tenancy or right of occupation has expired or been determined, does not go out of possession of the land held by him, the landlord or his agent may, without any demand upon the tenant, file a complaint under oath in Form A in the Schedule to this Act, or to the like effect, with a judge having jurisdiction in the place where the land is situate. Analysis [16] Paul Sibley does not assert possession pursuant to the Lease. Rather, he asserts possession pursuant to paragraph 5.1(d) of the Will, which reads as follows: 5.1 SPECIFIC BEQUESTS I DIRECT the Trustee to effect the following specific bequests to the respective person (provided such person survives the date of my death): … (d) to my daughters jointly DENYSE MARIE SIBLEY and PAULA SIBLEY FOX (or the survivor of them as of the date of my death) my old farm property at 251 Wyse Road comprising PIDs 00569962, 00569988, 00571000, 00571018, 40216436, 40216756, 40704272, with all furnishings and equipment on the understanding that the properties will be kept intact and available for utilization by Sibley family members as long as possible with ongoing financial support as available from Sibley family members following which the properties are to be sold and the net proceeds distributed among such Sibley family members (including themselves) as they in their sole discretion shall determine. [17] This provision under the Will allows Sibley family members to “farm the farm” if they cover the costs of doing so. Paul Sibley claims this is what he has been doing. He asserts that any challenge to his ongoing possession of the lands should be based on the Will and adjudicated in Probate court not under the Overholding Tenants Act. [18] Fitzpatrick v. Brown, 2001 CarswellNS 590 (NSSC) dealt with two proceedings, the main proceeding sought an order terminating a tenancy, as well as an order declaring the defendants as trespassers and prohibiting them from continuing to occupy the land. [19] The other proceeding dealt with the overholding tenancy under the Overholding Tenants Act. The court determined this proceeding, where a landlord is simply looking to regain possession of land when a tenancy has ended, could continue separately as a summary proceeding. Justice Hall made the following finding: [5] As to the matters being duplicitous, I am of the view that that is not the case. The main proceeding seeks an order terminating the tenancy, as well as an order declaring that the Brown’s are trespassers and enjoining them from continuing to occupy the land or to trespass upon it. [6] The overholding tenancies proceeding, on the other hand, simply is a process by which a landlord may summarily regain possession of his or her land when the tenancy has been terminated. It may well be said that the claim for possession of the land is included in the main proceeding, but to my mind the two proceedings are separate in the sense that the latter is a summary proceeding, and the former could result in a very lengthy, complex trial. [20] The main issue involved a question of adverse possession. The defendants argued they had occupied the land in one way or another since 1954 but acknowledged that at one point they were in talks to buy a parcel of the land from the plaintiff. Therefore, the court found this showed an acknowledgement by the defendants of the plaintiff’s title. The court concluded there was no validity to the defendants’ alleged adverse possession, nor any question with respect to the plaintiff’s title to the land. The court accepted the application of the plaintiff and granted him possession. [21] The court in Fitzpatrick found that a proceeding under the Overholding Tenants Act is a summary proceeding and it can proceed despite there being another proceeding. [22] In MacLean v. MacLean, 2003 NSSC 221, the court dealt with an application for an Order for Possession of land located at 1112 Big Baddeck Road in Baddeck, Nova Scotia (the “Property”). The application was brought under the Overholding Tenants Act by the deceased’s daughter Norma Jo-Anne MacLean. [23] The Property had been owned by the late Duncan MacLean, who died without a Last Will and Testament. [24] Kimberly MacLean, the common law partner of the late Duncan MacLean, filed a letter in the proceeding allegedly written by Duncan MacLean indicating his intention to provide her with his estate. Norma Jo-Anne MacLean appeared to have ownership pursuant to the Intestate Succession Act. Kimberly MacLean had not filed a claim in Probate Court, nor had an action started in Supreme Court. [25] The sole issue was whether the court had jurisdiction to grant an Order for Possession to Norma-Jo Anne MacLean. Kimberley MacLean’s position was that there was no jurisdiction for this under the Overholding Tenants Act. The court found that the Overholding Tenants Act applied to Kimberly MacLean’s occupancy as a “common-law guest arrangement”, as she continued to live in the house after his death. [26] The court found that Norma Jo-Anne MacLean was the owner of the Property pursuant to the Interstate Succession Act and was thus entitled to an Order of Possession to the land. [27] In making this conclusion, the court stated that granting an Order providing daughter Norma Jo-Anne MacLean vacant possession of the Property under the Act did not bar Kimberly MacLean from advancing her own claim on the Property. Goodfellow J. stated the following on the issue: 14 I want to make it clear that such a determination does not carry with it a determination or foreclosure of Kimberly Maclean advancing what, if any, claims she has in Probate Court or by any cause of action, such as constructive trust, unjust enrichment, etc. My understanding is that she anticipates shortly pursuing what, if any, claim she has. The Order granting Norma Jo-Anne MacLean possession shall clearly indicate such and neither extinguishes or affects what, if any, such claims Ms. Kimberly MacLean may advance. [28] The court in MacLean did not consider whether the court should order possession in the face of a competing claim, which I have before me in paragraph 5.1(d) of the Will, which gives possession of the farmlands in dispute to those “Sibley family members” that wish to farm the farm. The court in MacLean found that the Act gives the court the authority to grant an order for possession but is silent as to whether it should grant an order for possession where the issue of the validity and interpretation of the Will is disputed, which are the circumstances before me. The circumstances before me support the position that probate must first be opened. [29] Macdonell, Sheard and Hull, On Probate Practice, 5th ed states at page 298: Any debtor of the testator is justified in refusing to pay a debt to the executor until probate is produced. All proceedings in an action by the executor to enforce such payment will be stayed until the plaintiff obtains probate. Similarly, an action brought by the executor to recover possession of the testator’s goods, or for damages for their wrongful conversion, cannot be maintained unless the executor has proved the will. In the absence of special statutory provisions to the contrary, the executor will fail whenever it is necessary to establish title as the personal representative of the deceased. It is otherwise where the executor has had actual possession, and such possession is, in the circumstances, sufficient to establish a cause of action. For example, an action for money had and received was maintainable against a sheriff who seized and sold a pony, the property of the plaintiffs’ deceased husband, upon an execution against her lodger. Her possession of the pony at the time it was seized would enable her to maintain trespass against a wrongdoer. She might waive the tort, and recover the money produced at the sale. [30] The text goes on to say the following at page 299: Where a proceeding has been started by or against a person as executor or administrator before a grant has been made, and the person subsequently receives a grant of probate or administration, the proceeding shall be deemed to have been properly constituted from its commencement. Before having proven the will, the executor, in the eye of the law, is considered as having some authority. Even before probate, the executor may go so far as to get in and receive the testator’s estate, or release debts, or even bring actions for them, though at the trial, indeed the law will require probate to be produced. [31] This is based upon the Ontario Rule 9.03(1), where the executor can commence an action. The Rule reads: Proceeding Commenced before Probate or Administration 9.03 (1) Where a proceeding is commenced by or against a person as executor or administrator before a grant of probate or administration has been made and the person subsequently receives a grant of probate or administration, the proceeding shall be deemed to have been properly constituted from its commencement. R.R.O. 1990, Reg. 194, r. 9.03 (1). [32] In contrast CPR 36.11 reads: 36.11 Executor, administrator, or trustee (3) A proceeding is properly commenced against an executor or administrator before the grant of probate or administration, if the grant is subsequently obtained. [33] In Ontario, actions commenced by and against Estates before the grant of probate “shall be deemed to have been properly constituted from its commencement” if probate is subsequently obtained. In Nova Scotia, this ratification only applies to proceedings against the Estate. [34] In Stout Estate v. Golinowski Estate, 2002 ABCA 49, the court was determining whether a statement of claim can be amended after the applicable limitation period to substitute the administrator of the estate in place of the administrator ad litem, in a claim advanced by the estate of an intestate. The Alberta Court of Appeal explained the rule and the historic exceptions as to where the powers of the executor and an administrator derive from and the validity of certain actions they take at paras. 29-31: 29 Relating back is discussed in J.H.G. Sunnucks, et al., Williams, Mortimer and Sunnocks on Executors, Administrators and Probate, (18th ed. Williams on Executors and 6th ed. Mortimer on Probate) (London: Sweet & Maxwell, 2000) [hereinafter Williams and Mortimer]. The nullity cases speak to relating back in the context of acts done by an administrator of an estate. The doctrine generally holds that an appointment of an executor may relate back to the testator’s death, but a grant of administration would not similarly relate back to the intestate’s death. An executor’s powers derive from the will, and so commence from the moment of death. Thus, acts done by an executor pursuant to that title after the testator’s death are valid notwithstanding that probate may not have been issued: Williams and Mortimer, p. 87. 30 On the other hand, the powers of an administrator derive only from the grant of letters of administration. Prior to the grant, the administrator has no powers to exercise on behalf of the estate. It is in this context that the statements about nullity arise. An action brought by a person as an administrator of an estate has been said to be a nullity if the action is brought before the issue of letters of administration, because it is only upon the issue of letters that the administrator has any authority to represent the estate: Ingall v. Moran, [1944] 1 K.B. 160 (Eng. C.A.). Williams and Mortimer discuss this at pp. 93-94: At law, letters of administration must issue before the commencement of legal proceedings by a person entitled to administration for he has no right of action until he has obtained them, and even if he obtains a grant afterwards, it does not for this purpose relate back... The proceedings are a nullity and cannot be validated by a later grant of administration. [Emphasis added] 31 There is, however, some precedent for relating back in the context of administrators, with the result that acts done before the grant of administration might be valid. This possibility was said to arise in cases where the acts were done for the benefit of the estate: Williams and Mortimer at pp. 94-97 and McEllistrum v. Etches, [1954] 4 D.L.R. 350 (Ont. C.A.), reversed in part (1956), 6 D.L.R. (2d) 1 (S.C.C.). [35] An executor’s powers derive from the will, and the exercise of those powers are valid without a grant of probate unlike those of an administrator. [36] In Gibson et al. v. Gibson, (1964) 44 D.L.R. (2d) 744, 1964 CanLII 535 (B.C.C.A.), the appellant was named as the executor of the will of his deceased spouse. The appellant had not sought to prove the will in probate because he alleged it had been mysteriously stolen. A duplex owned by the estate had been damaged by fire, and the insurer of the property had paid the proceeds of insurance into court because probate had not been granted. Despite there being no grant of probate, the Superior Court ordered the payment to the appellant of the funds paid into court on the strength of an affidavit where the appellant appended a copy of his deceased spouse’s will. The Court of Appeal stated at para. 8: A more serious objection is that appellant had no right to make or the Court ordering the payment out to execute a declaration of trust in respect of property not belonging to the appellant, but belonging to an estate; also that the judgment below executing the trusts declared by the affidavit ignores possible claims upon the property by creditors and persons entitled to the property upon intestacy or upon the true construction of the will. It is unlikely that any creditors of the deceased remain some 21 years after the deceased's death; most unsatisfied claims would be statute barred by that time. The learned trial Judge apparently considered that trusts declared by the affidavit conformed to the trusts declared by the will. But in my respectful opinion no Court is entitled to give effect to the provisions of a will affecting real or personal estate (now that real estate as well as personal estate vests in the personal representative) until the document is established as the last will by grant of letters probate. [My emphasis added] [37] Gibson et al. v. Gibson was cited in Lenz v. Lenz Estate, 2003 SKQB 518. In Lenz, the parties wanted the court to resolve an interpretation issue, of note, there was no dispute as the validity of the will. The executrix argued that Gibson required probate to be opened to do so. The court disagreed, finding that the circumstances of the case distinguished it from Gibson. Klebuc J. decided the following: [1] The applicant seeks an order pursuant to s.14(1)(b)(1) of The Administration of Estates Act, S.S. 1998, c. A-4.1 directing the respondent executrix to apply for letters probate for the last will and testament of her late husband, Charles Herman Lenz (“the Will”), notwithstanding that his estate consists of liquid assets valued at approximately $50,000, which are transferable without the assistance of letters probate. Her sole purpose in exposing her late husband’s estate to probate costs relates to an application for judicial interpretation of the Will she wants to make and which she understands cannot be done until the Will is probated. That understanding is founded on Gibson v. Gibson (1964), 1964 CanLII 535 (BC CA), 44 D.L.R. (2d) 744 (B.C.C.A.) where the court concluded that it was not entitled to give effect to the provisions of a will until it was proven by letters probate. [2] I am satisfied that nothing in The Administration of Estates Act, The Queen’s Bench Rules of Court Saskatchewan, or the jurisprudence relating to estates of the nature under consideration herein limits this Court’s authority to interpret a will accepted by all parties as the last will and testament of the deceased without the same having been probated. Nor would it be just or convenient to impose such a condition in circumstances where letters probate will not assist in the interpretation of the deceased’s will or provide meaningful assurance for the executrix, the Court or expectant beneficiaries. [3] In the instant case there is no suggestion that the applicant’s husband had other wills. Nor is there a material contest between expectant beneficiaries as evidenced by the respondent’s willingness to have the Will judicially interpreted. In this respect, the instant case is distinguishable from Gibson v. Gibson, supra, where the deceased’s last will and testament had been destroyed, the assets of his estate managed and depleted by several of his expectant beneficiaries over a lengthy period, and expectant beneficiaries had raised numerous conflicting claims. [My emphasis added] [38] The court in Lenz acknowledged the general rule followed by Gibson and merely held that the circumstances in Lenz (a will accepted by all parties) were an exception to the general rule. [39] A similar result was found in Silver Estate v. Silver, [2000] O.J. No. 3391, which concerned an application to vary the terms of a trust set up pursuant to a will under the Variation of Trusts Act, R.S.O. 1990. The application was supported by the executors under the will (who were also the trustees) and all the known beneficiaries. The court’s approval was “sought on behalf of minor, unborn and unascertained beneficiaries.” Probate had not been opened to avoid fees. [40] The court observed that the Ontario Court of Appeal had upheld the common law rule that probate needed to be opened but asked whether doing so was necessary in the circumstances of this case, specifically the will was not challenged, and all parties supported the motion. [41] The court framed the issue as follows: 9 The principal-and, for the most part, rather elderly- authorities that might be thought to bear on this question are those which contain statements, of varying degrees of generality, to the effect that the court cannot recognize the title of an executor unless probate has been granted and is produced. It has been said that only when this has been done will the court have the "legal optics" to read the will: Johnson v. Warwick (1856), 17 C.B. 516 (Eng. C.P.), at p. 521; Stump v. Bradley (1868), 15 Gr. 30 (Ont. Ch.) at p. 31. This rule of practice, or evidence, was given a broad formulation by the Court of Appeal in Re Eurig Estate (1997), 31 O.R. (3d) 777 (Ont. C.A.) (reversed on other grounds, [1998] 2 S.C.R. 565 (S.C.C.)) where, in delivering the judgment of the court, Morden A.C.J.O. stated: Further, apart from the general legal duty to administer the estate promptly and efficiently, which almost invariably requires the executor to obtain probate, the law imposes the requirement that an executor must have probate to prove his or her title when an estate matter is before the court. Letters probate are the only evidence of an executor's title which a court will receive (see Hull and Hull, Macdonnell, Sheard and Hull, Probate Practice, 4th ed. (1996) at pp.185 and 188), even in a case where the defendant is willing to concede that the executor has title without evidence of probate: Re Crowhurst Park; Sims-Hilditch v. Simmons, [1974] 1 W.L.R. 583 (Ch), (at p. 792) 10 The point was not directly in issue in Re Eurig Estate but, as the statement I have quoted evidently represents a firm and considered view of the Court of Appeal, I must defer to it. There is, however, a question with respect to the circumstances in which it will be necessary to prove an executor's title. That question arises in this case and, I believe, it, and the meaning to be attributed to the reference to an "estate matter", must be determined in the light of the authorities that were cited. I emphasise this point because, apart from other considerations I will mention, there are will-settled exceptions to the rule affirmed by the Court of Appeal and I do not think I am entitled to infer that these were intended to be abolished. [42] The court concluded as follows at paragraph 26: 26 The considerations I have mentioned, including those referred to earlier in these reasons, lead me to the conclusion that the rule that requires probate to be produced before executors can proceed with an action to enforce rights acquired by the deceased prior to death — a rule that was originally a rule of pleading — is inappropriate, and should not be extended, to summary proceedings between trustees of a testamentary trust and the beneficiaries where the validity of the will is not an issue between the parties. Unlike the situation in Sims-Hilditch, none of the parties is expressly relying — as against any of the others — on the right, or title, of the executors to deal with the property of the deceased. At the most, such a right is presupposed in the application which is essentially concerned with the completion of a contract between the parties: Re Holt's Settlement (1968), [1969] 1 Ch. 100 (Eng. Ch. Div.), at p. 116-7; Re Druce’s Settlement Trusts, [1962] 1 W.L.R. 363 (Eng. Ch. Div.), at p. 369. The approval of the court would bind no one else. In my judgment, this is not a case where it is necessary for the court to intrude officiously and insist that the title of the executors, or the validity of the will, be proved. [My emphasis added] [43] Silver Estate differs from the case before me because not all beneficiaries support the application. The Landlord is seeking a remedy that Paul Sibley argues is inconsistent with terms of the Will in paragraph 5.1(d). Paul Sibley has indicated that he will challenge the Will. [44] Paul Sibley disputes the validity of the Will and argues that this should be resolved first before any proceeding is commenced against Paul Sibley by the Estate. This would also allow all the arguments concerning the rights to possession of the land to be heard at once. [45] The Landlord argues that Paul Sibley has alleged an interest in the lands as a defence in this proceeding based on an unproven testamentary document, but he is not the legal owner of the land. Therefore, the Overholding Tenants Act provides the authority to grant an Order for Possession to the legal owner of the property without determining the merits of Paul Sibley’s claim. They argue that the granting of the Order would not prejudice Paul Sibley’s ability to have the testamentary document proven or commence an action. Judicial discretion [46] The Landlord argues in the alternative, should this Court determine that a grant of probate is required before an estate can commence a legal proceeding then this is a case which warrants the exercise of judicial discretion to excuse the common law requirement. However, the Landlord has not provided any authority for the proposition that the common law requirement can be avoided at the discretion of the Court pursuant to CPR 2.03. [47] In any event, if CPR 2.03 does provide that discretion, I refuse to exercise it because the validity of the Will is still in dispute and the avoidance of probate fees prescribed by legislation is not a valid reason to exercise that discretion. Conclusion [48] In these circumstances, where there is a Will under dispute. I find that the matter should be addressed at one time, in one venue. I conclude that the issue surrounding the interpretation of the Will needs to be addressed first to both validate and interpret the Will before determining whether to grant the Applicant an Order for Possession under the Overholding Tenants Act without determining the merits of Paul Sibley’s claim asserting possession under the Will. [49] The Landlord’s complaint is dismissed, with costs in favour of Paul Sibley. The Complaint is stayed to allow for a claim to be started in Probate Court, or separately advanced in Supreme Court. [50] I would ask counsel for Paul Sibley to prepare the Order. Costs [51] The Applicant relies on the following provision of the Overholding Tenants Act regarding an award of costs to the successful party: Costs 5(4) The successful party may be allowed by the judge as his costs a sum not exceeding fifteen dollars inclusive of disbursements incurred by him. [52] Paul Sibley argues that the Landlord’s Reply submissions throughout these proceedings were not proper reply and raised additional issues and theories to support its position and that abuse should be recognised with an increased costs award against the Landlord. [53] If the parties are unable to reach an agreement on costs, I will receive written submissions from the Landlord within 30 days of the date of this decision with Paul Sibley filing their submissions within 45 days of the date of this decision. Bodurtha, J.