Bowes v. Crawley Estate

Bowes v. Crawley Estate Court Supreme Court Date 2025-04-02 Citation 2025 NSSC 120 Docket Ken, No. 532836 Judge/Registrar/Adjudicator Gatchalian, Gail L. (Honourable Justice) Document Type Decision Decision Content SUPREME COURT OF Nova Scotia Citation: Bowes v. Crawley Estate, 2025 NSSC 120 Date: 20250402 Docket: Ken, No. 532836 Registry: Kentville Between: Michele Bowes and Finnegan Thomas Bowes Applicants v. Adelle Janet Mary Crawley Watt, Personal Representative of the Estate of Frances Janet McGoey Crawley Respondent Judge: The Honourable Justice Gail L. Gatchalian Heard: March 31, 2025 in Kentville, Nova Scotia Oral Decision: April 2, 2025 Written Decision: April 2, 2025 Counsel: Nick Moore, for the Applicants Kelly Richards, for the Estate By the Court: Introduction [1] Dr. Frances Janet McGoey Crawley, of Upper Falmouth, Nova Scotia, executed her last will on September 9, 2022. She named her daughter, Adelle Janet Mary Crawley Watt, as executor and trustee of her will. She created an “education fund” for her grandsons – the children of her daughter, Michele Bowes - as follows in Clause 3.04 of the will: 3.04 Education fund for Bowes Grandsons – My Trustee shall set aside and keep invested a fund from the balance of my GIC comprised of approximately per cent (69%) of my inheritance from my late mother upon the following terms: (a) My Trustee shall pay the income derived from this fund to or for the postsecondary education or training costs of my grandsons: Benjamin Robert Bowes; Liam Michael Bowes; Finnegan Thomas Bowes; Jack Alexander Bowes; and Luke Daniel Bowes until the youngest living of my said grandsons reaches the age of twenty six (26) years. (b) If the income in any year is not sufficient to provide for my grandsons’ educational needs, my Trustee may encroach on the capital of the fund in such amounts as she in her absolute discretion considers advisable. My said grandsons shall provide such evidence of enrollment or continued enrollment in a post secondary institution or training, including receipts and transcripts, as my Trustee in her absolute discretion considers sufficient evidence. My Trustee is not required to maintain an even hand among my said grandsons and may exclude entirely one or more of my said grandsons should a said grandson fail to provide sufficient proof of enrollment in her absolute discretion. (c) If there is a balance in this fund upon the youngest living of my said grandsons turning twenty six (26) years of age, my Trustee shall divide the balance of the fund equally amongst my issue alive at that time. [2] In late May of 2023, Dr. Crawley cashed in her GIC, worth approximately $147,000, and transferred those funds to Ms. Watt by cheque. Ms. Watt eventually invested those funds and has been using the funds to reimburse the Bowes grandsons for their education expenses. [3] Dr. Crawley died on June 20, 2023 at the age of 76. Ms. Watt was granted probate on July 28, 2023. Ms. Watt did not include the $147,000 in the inventory of the assets of the deceased. [4] Ms. Bowes and her son, Finnegan Bowes, have commenced an Application against the Estate under the Probate Act, S.N.S. 2000, c.31, seeking an order declaring that the funds transferred to Ms. Watt before Dr. Crawley’s death form part of the Estate. Ms. Bowes and Finnegan Bowes rely on the doctrine of resulting trust and the leading case of Pecore v. Pecore [2007], 1 S.C.R. 795. They say that there is a presumption of a resulting trust in favour of the Estate in this case, and that the Estate has failed to rebut the presumption. [5] The Estate says that the funds are subject to an express trust. The Estate says that Dr. Crawley transferred the funds to Ms. Watt in trust for the benefit of the Bowes grandsons, and that she did so to minimize costs and taxes to the Estate, and to avoid delay in accessing the funds. [6] Ms. Bowes and Finnegan Bowes each filed Affidavits and Rebuttal Affidavits in support of the Application. [7] Ms. Watt and her brother, Harold Crawley, one of Dr. Crawley’s sons, filed Affidavits on behalf of the Estate. [8] Ms. Bowes, Finnegan Bowes and Ms. Watt were cross-examined at the hearing. [9] The onus lies on the Estate to establish the existence of a trust on a balance of probabilities: see Larochelle v. Soucie Estate, 2019 BCSC 1329 at para.176. A trust exists where there has been (1) an express or implied declaration of trust, with (2) an alienation of property to a trustee (3) to be held for a specified beneficiary (these requirements are also described as the “three certainties”: certainty of intention, certainty of subject matter, and certainty of objects): Canada (Attorney General) v. British Columbia Investment Management Corp., 2019 SCC 63 at para.58, citing Schmidt v. Air Products Canada Ltd., [1994] 2 S.C.R. 611, at p. 655 and Waters’ Law of Trusts in Canada, at p.140. [10] A valid trust is created when the three certainties have been established and the trust property has been vested in the trustee: see Malik v. Malik, 2025 BCSC 30 at para.89. [11] I am not convinced that the presumption of a resulting trust applies in this case, where Ms. Watt does not assert that the $147,000 was intended as a gift to her. Nonetheless, if the Estate proves, on a balance of probabilities, that the funds are the subject of an express trust, the presumption of a resulting trust, if it applies, has been rebutted: see Elsen v. Elsen, 2011 BCCA 314 at para.22. Certainty of Intention [12] When considering the evidence of Dr. Crawley’s intention in transferring the funds to Ms. Watt, I must keep in mind s.45 of the Evidence Act, R.S.N.S. 1989, c.154. Under that section, any potential heir or interested party in this proceeding – namely, Ms. Bowes, Finnegan Bowes and Ms. Watt, as the personal representative of the Estate - cannot obtain a decision on his or her testimony alone with respect to any dealings with Dr. Crawley, or with respect to any act, statement, acknowledgement or admission of Dr. Crawley, unless such testimony is corroborated by other material evidence. [13] I found Ms. Watt to be a credible and reliable witness. Her credibility and reliability were not shaken on cross-examination. I was given no reason to question the credibility and reliability of Harold Crawley, who was not cross-examined. I accept their evidence. [14] I find, on a balance of probabilities, that, when Ms. Crawley transferred $147,000 to Ms. Watt before her death, she clearly intended to create a trust, with Ms. Watt as trustee, for the benefit of the Bowes grandsons. I rely on the following facts for my conclusion: • Clause 3.4 of the will requires the Trustee under the will – Ms. Watt - to set aside and keep invested a fund, comprised of the balance of her GIC, to be used for the benefit of the Bowes grandsons. • Dr. Crawley gave Ms. Watt a copy of the will in September of 2022, after it was executed, and Ms. Watt was aware of the contents of the will. • Dr. Crawley owned a one-year cashable GIC with the Royal Bank of Canada. • As of May 25, 2023, the funds in the GIC were worth $146,478.74. • Ms. Watt lives in Alberta, but had been staying in Nova Scotia to care for her mother before her death. • On May 25, 2023, Dr. Crawley told Ms. Watt that she wanted to cash in the GIC referred to in Clause 3.04 of her will so that: (1) there would be no delay in accessing the funds to pay for the education costs of the Bowes grandsons and (2) she could minimize costs and taxes. • During one of Harold Crawley’s last visits with his mother, before her death in June of 2023, she told him that she planned to give the funds that she wanted to be used for her grandsons’ education costs to Ms. Watt while she was still living. • On May 25, 2023, Dr. Crawley withdrew the full amount of $146,478.74 from the GIC. It appears that she was also paid interest in the amount of $744.43. • In late May, 2023, Dr. Crawley gave Ms. Watt a cheque for $147,000 and told her that the funds were intended to be the proceeds of the GIC. • Ms. Watt agreed to use and manage the money for the benefit of the Bowes grandsons. [15] While Ms. Bowes and Finnegan Bowes asserted that Dr. Crawley told them that she was leaving funds to the Bowes grandsons in her will for their education costs, they did not say when the conversation occurred. It appears from their evidence, and I so find, that neither Ms. Bowes nor Finnegan Bowes were aware, while Dr. Crawley was still alive, that she had cashed in her GIC and transferred the funds to Ms. Watt in May of 2023. They did not discuss with Dr. Crawley her intention in transferring the funds to Ms. Watt. [16] No technical language is necessary to create a trust; it is intention that matters: see Gough v. Leslie Estate, 2022 NSCA 25 at para.51, citing Waters’ Law of Trusts, p. 143. The Estate has discharged the burden of establishing that Dr. Crawley clearly intended Ms. Watt to hold the $147,000 in trust. Certainty of Subject Matter [17] The Estate has established that the subject-matter of the trust is identifiable: Dr. Crawley clearly identified the funds in her GIC, which she then transferred to Ms. Watt by way of cheque, as being the subject-matter of the trust. Ms. Watt initially deposited those funds into her personal bank account and then, in September of 2023, invested them with TD Bank Wealth Management, where they remain invested. Certainty of Objects [18] The objects of the trust are certain: the five Bowes grandsons. Trust Property Vested [19] The trust was also properly constituted, as title to the trust property – the proceeds of the GIC – was transferred to Ms. Watt. Resulting Trust [20] Assuming, without deciding, that the presumption of a resulting trust applies, the Estate has rebutted the presumption by establishing, on the balance of probabilities, the existence of an express trust. Conclusion [21] The Application of Ms. Bowes and Finnegan Bowes is dismissed. [22] If the parties cannot agree on the issue of costs, I will receive written submissions from the Estate within two weeks of this decision, and written submissions from the Applicants within one month of this decision. Gatchalian, J.