Demone v. Saunders

Demone v. Saunders

The notice of appeal was quashed because it was absolutely unsustainable on its face: it duplicated grounds already found without merit on full hearing, advanced a legally incorrect proposition that removal of an executor requires a criminal conviction for theft, and the appellant had not complied with prior orders; Rule 62.18 authorizes quashing such an appeal. Costs were awarded on a solicitor-client basis.

Citation
1999 NSCA 145
Parties
Applicant/administrator: Loran Demone; Applicant/beneficiary: Merilyn Hendry; Appellant/former Executor: Edmund R. Saunders; Deceased/estate: Estate of Dorothy Belle Crouse
Court
Nova Scotia Court of Appeal
Jurisdiction
Canada
Judgment Date
23 November 1999
Procedural Posture
Probate Executor Removal / Appeal From Probate Court / Application to Quash Appeal Under Civil Procedure Rule 62.18 at Nova Scotia Court of Appeal
Outcome
Application granted; notice of appeal quashed.
Legal Topics
Removal of Executor, Security for Executor, Quashing Appeal, Fiduciary Duties, Costs and Solicitor Client Costs
Source Language
English
Probate Law Estate Administration Civil Procedure Appeals Removal of Executor Security for Executor Quashing Appeal Fiduciary Duties +1 more

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Parties

Loran Demone

Applicant/administrator

Merilyn Hendry

Applicant/beneficiary

Edmund R. Saunders

Appellant/former Executor

Estate of Dorothy Belle Crouse

Deceased/estate

Procedural Posture

Probate Executor Removal / Appeal From Probate Court / Application to Quash Appeal Under Civil Procedure Rule 62.18 at Nova Scotia Court of Appeal

Legal Issues

  1. 1 Whether the notice of appeal is frivolous, vexatious or without merit and therefore quashable under Rule 62.18
  2. 2 Whether the appellant's contention that an executor cannot be removed absent a criminal conviction is legally sound
  3. 3 Whether there has been undue delay or abuse of process such that the appeal should be quashed

Ratio Decidendi

The notice of appeal was quashed because it was absolutely unsustainable on its face: it duplicated grounds already found without merit on full hearing, advanced a legally incorrect proposition that removal of an executor requires a criminal conviction for theft, and the appellant had not complied with prior orders; Rule 62.18 authorizes quashing such an appeal. Costs were awarded on a solicitor-client basis.

Court Disposition

Application granted; notice of appeal quashed.

Orders

  • Notice of appeal quashed.
  • Application granted with costs against the appellant on a solicitor/client basis in the amount of $2,000 including disbursements.