Pierce Estate (Re)

Pierce Estate (Re)

The court found the evidence did not rebut the presumption of advancement regarding the $40,000 payment and, applying the presumption against double portions, held that the $40,000 effectively adeemed the executor's testamentary share to that extent; specific estate charges were disallowed or allowed as set out; the executor's conduct (improper use of bank card, unauthorized donation of estate chattels, delays and advances) justified denying any executor's commission; proctor's fees were reduced to a reasonable amount (CAD 15,000 plus HST and disbursements) and the accounts were passed subject to the stated exceptions.

Citation
2003 NSSC 110
Parties
Deceased: Eileen Pierce; Deceased: Carman P. Pierce; Executor: David Lloyd-Pearce; Beneficiary: Ellen Pierce; Beneficiary: Cynthia Embree; Proctor for the Estates: Allen C. Fownes
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
16 May 2003
Procedural Posture
Probate / Court of Probate Final Decision (accounts Hearing)
Outcome
Accounts passed with exceptions; specified expenses disallowed; $40,000 payment treated as ademption against executor's testamentary share to extent of $40,000; no executor's commission awarded; proctor's fees allowed in reduced amount.
Legal Topics
Executor's Commission, Proctor's Fees, Presumption of Advancement, Resulting Trust, Ademption/double Portions, Estate Expenses, Travel Reimbursement, Powers of Attorney
Source Language
English
Wills and Estates Probate Trusts Estate Administration Executor's Commission Proctor's Fees Presumption of Advancement Resulting Trust +4 more

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Parties

Eileen Pierce

Deceased

Carman P. Pierce

Deceased

David Lloyd-Pearce

Executor

Ellen Pierce

Beneficiary

Cynthia Embree

Beneficiary

Allen C. Fownes

Proctor for the Estates

Procedural Posture

Probate / Court of Probate Final Decision (accounts Hearing)

Legal Issues

  1. 1 whether specific estate expenses are reasonable and chargeable to the estates (telephone, cable, cleaning, inspections, travel, donations)
  2. 2 whether $40,000 paid to executor was a loan or gift (presumption of advancement and presumption against double portions)
  3. 3 whether executor is entitled to commission

Ratio Decidendi

The court found the evidence did not rebut the presumption of advancement regarding the $40,000 payment and, applying the presumption against double portions, held that the $40,000 effectively adeemed the executor's testamentary share to that extent; specific estate charges were disallowed or allowed as set out; the executor's conduct (improper use of bank card, unauthorized donation of estate chattels, delays and advances) justified denying any executor's commission; proctor's fees were reduced to a reasonable amount (CAD 15,000 plus HST and disbursements) and the accounts were passed subject to the stated exceptions.

Court Disposition

Accounts passed with exceptions; specified expenses disallowed; $40,000 payment treated as ademption against executor's testamentary share to extent of $40,000; no executor's commission awarded; proctor's fees allowed in reduced amount.

Orders

  • Disallow long-distance telephone charges in the amount of CAD 535.00 as estate expenses.
  • Disallow cable charges totalling CAD 167.26.