Kinley Estate v. MacKeen

Kinley Estate v. MacKeen

The court exercised its discretion to reopen because the sale issue was significant and failure to hear it risked substantial injustice; it found the 'all other shares, bank accounts and investments' clause to be a demonstrative bequest, residue and demonstrative funds covered estate expenses so the specific bequest...

Source-derived case information.

Citation
2023 NSSC 357
Parties
Applicant Personal Representative: Paula Howatt; Applicant Personal Representative: Edward Kinley; Respondent Beneficiary / Objector: Shona Kinley MacKeen; Respondent Beneficiary / Objector: Peter Kinley
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
14 November 2023
Procedural Posture
Probate Passing of Accounts / Post Decision Reopening and Determination on Entitlement and Damages
Outcome
Hearing reopened on issue of sale of High Liner Foods shares; bequest of 'all other shares, bank accounts and investments' characterized as demonstrative; specific bequest of High Liner shares did not abate; Peter awarded $11,081.33 payable from the Estate; Personal Representatives discharged from further account...
Legal Topics
Specific Bequest, Demonstrative Bequest, Order of Abatement, Reopening of Hearing, Breach of Trust, Damages, Costs, Passing of Accounts
Source Language
english
Probate Trusts Estate Administration Civil Procedure Specific Bequest Demonstrative Bequest Order of Abatement Reopening of Hearing +4 more

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 4 Authorities cited 7 Party arguments 2 Amounts and remedies 10
Sign in to unlock

Parties

Paula Howatt

Applicant Personal Representative

Edward Kinley

Applicant Personal Representative

Shona Kinley MacKeen

Respondent Beneficiary / Objector

Peter Kinley

Respondent Beneficiary / Objector

Procedural Posture

Probate Passing of Accounts / Post Decision Reopening and Determination on Entitlement and Damages

Legal Issues

  1. 1 Whether to exercise discretion to reopen the hearing after reasons issued
  2. 2 Whether the bequest of 'all other shares, bank accounts and investments' is a specific or demonstrative bequest
  3. 3 Whether the specific bequest of High Liner Foods shares abated to pay estate expenses

Ratio Decidendi

The court exercised its discretion to reopen because the sale issue was significant and failure to hear it risked substantial injustice; it found the 'all other shares, bank accounts and investments' clause to be a demonstrative bequest, residue and demonstrative funds covered estate expenses so the specific bequest of 989 High Liner Foods shares to Peter did not abate, the Personal Representatives should not have sold the shares, and Peter is entitled to reimbursement of $11,081.33 from the Estate but the court declined to impose personal liability on the Personal Representatives.

Court Disposition

Hearing reopened on issue of sale of High Liner Foods shares; bequest of 'all other shares, bank accounts and investments' characterized as demonstrative; specific bequest of High Liner shares did not abate; Peter awarded $11,081.33 payable from the Estate; Personal Representatives discharged from further account...

Orders

  • Reopen the hearing to consider Peter's claim regarding sale of High Liner Foods shares (order exercised)
  • Declare that the bequest in paragraph 14 is a demonstrative bequest and that the specific bequest of 989 High Liner Foods shares to Peter did not abate