SUPREME COURT OF NOVA SCOTIA
(FAMILY DIVISION)
Citation: McIntyre v. McNeil Estate, 2010 NSSC 135
Date: 20100401
Docket: 55987
Registry: Sydney
Between:
Edna P. McIntyre, Gerald McNeil and Kenneth (Roy) McNeil
Petitioner
v.
The Estate of James F. McNeil, deceased and Wade Wadman, Executor and Trustee of the Last Will and Testament of James f. McNeil
Respondent
LIBRARY HEADING
Judge: The Honourable Justice Theresa Forgeron
Heard: September 29 and 30, 2008, March 11, 12 and 26, December 7 and 8, 2009 and April 1, 2010, in Sydney, Nova Scotia
Final Written
Submissions: December 23, 2009 and January 7 and 13, 2010
Oral Decision: April 1, 2010
Written Decision: April 20, 2010
Subject: Estate Law: Testators’ Family Maintenance Act application.
Issue: Entitlement and Remedy
Result: In his 2005 will, the Testator named his youngest child as the sole beneficiary. His other four surviving children were excluded. Three of those children made application for relief under the Testators’ Family Maintenance Act. The court held that the Plaintiffs met the burden upon them. They established on a balance of probabilities that the Testator died without having made adequate provision for their proper maintenance and
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support, taking into account all relevant circumstances. The Testator failed to meet his legal and moral obligations. The Plaintiffs established a need for maintenance, relative to the size of their father’s estate, and also proved a strong moral claim. The court awarded each of the three Plaintiffs 12 % of the net value of the Estate. A specific dollar amount was not assigned because the court was not provided with credible evidence as to the true value of the estate and in particular the value of the salvage license and the real property. In the event the parties were unable to determine a proper valuation of the license and real property, or in the alternative, a mechanism by which the Plaintiffs would receive their portion of the estate, the court retained jurisdiction to determine these issues.
THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET.