IN THE COURT OF PROBATE FOR NOVA SCOTIA
Citation: Casavechia Estate (Re), 2014 NSSC 73
Date: 20140225
Docket: Hfx No. 418956
Probate Court File No. H-60181
Registry: Halifax
In the Estate of Louis Joseph William Casavechia
also known as William John Casavechia, Deceased
DECISION
Revised Decision: The text of the decision has been corrected according to the attached erratum dated February 27, 2014.
Judge: The Honourable Justice Glen G. McDougall
Heard: November 14, 2013, in Halifax, Nova Scotia
Counsel: Richard Niedermayer, Ll.B., and Tanya Butler, Ll.B., for the Applicant Shannon Noseworthy
Helen L. Foote, Ll.B., for the Respondent Glenna Casavechia
Sheldon Casavechia and Jace Downey, self-represented Respondents
No one appearing for Respondents, Nicole Casavechia and Josh Downey
By the Court (G.G. McDougall, J.):
[1] Shannon Noseworthy, daughter of the deceased, Louis Joseph William Casavechia (also known as William John "Bill" Casavechia), has filed an application for proof in solemn form of a handwritten letter prepared by her late father two years before his death. This letter purports to give Ms. Noseworthy a lakefront building lot to be carved out of the deceased's property when it is sold.
[2] The application is opposed by the testator's surviving spouse, Mrs. Glenna Casavechia and her two biological children, Sheldon Casavechia and Nicole Casavechia (both of whom were adopted by William Casavechia long before his death), and two grandchildren, Josh and Jace Downey.
[3] There is no dispute as to the author of the handwritten letter. Everyone agrees that the handwriting belongs to William Casavechia and the document bears his signature. The dispute centres on whether the letter "contains a deliberate or fixed and final expression of intention as to the disposal of property upon death, …": Re Gray Estate, [1958] SCR 392 at p. 396.
Background
[4] By way of background, William Casavechia died on or about the 1st day of September, 2012, leaving a Last Will and Testament dated October 2, 1996.
[5] The deceased was survived by his wife, Glenna, and four children. Two of the four children, Gary Casavechia and Shannon Noseworthy, were his biological children from a previous marriage. The remaining two children, Sheldon Casavechia and Nicole Casavechia, were the biological children of his wife, Glenna. William Casavechia adopted them after he married their mother.
[6] At the time of his death, the deceased owned approximately 28 acres of land at 379 Caldwell Road in Cole Harbour. The land was acquired in three separate transactions. The first parcel was purchased by William Casavechia in 1970 from his two brothers and their respective spouses. The second and third parcels were conveyed by deeds dated February 10, 1975 and June 30, 1976 respectively. Although William Casavechia married Glenna Casavechia on December 15, 1973, neither of the latter two deeds mentioned his marital status or named his spouse. Irrespective of this, the couple occupied a house on the property as their matrimonial home.
[7] In the years following his acquisition of the lands, William Casavechia sold off a number of lots to interested individuals and corporations. His wife was not involved in these transactions and her signature does not appear on the deeds. The remaining 28 acres of property was consolidated as Parcel "WCY". It received subdivision approval on January 12, 1996. The lakefront lot that is the subject of this application would come out of the extreme southeast corner of Parcel "WCY" fronting on Morris Lake.
The Will
[8] The deceased's Will gave Glenna Casavechia the right to live on the property during her lifetime, or for such shorter time as she desired, or for such time as the executor considered appropriate in his sole and absolute discretion. For as long as she remained on the property, his wife was to pay all expenses required for its maintenance. If, at any point, Mrs. Casavechia needed additional funds to pay these expenses, the executor was entitled to sell a portion of the property and use the proceeds for this purpose. If the executor decided to sell the property, he was to subdivide the land and convey the house, outbuildings and 3 acres of land to Mrs. Casavechia. Upon her death, the remaining property was to be sold.
[9] Probate of the Will was granted to William Casavechia's brother, John Casavechia, on November 2, 2012. Unfortunately, John is in poor health and he was discharged as executor by order of the Registrar of Probate on May 22, 2013. The Bank of Nova Scotia Trust Company was appointed successor executor on May 30, 2013. The executor takes no position on this application.
[10] On May 1, 2013, Glenna Casavechia filed an application in the Family Division of the Nova Scotia Supreme Court to have the entire property divided under the Matrimonial Property Act, RS, c 275. That matter is awaiting the Court's decision on this application.
[11] William Casavechia's biological son, Gary Casavechia, has also filed a claim against the deceased's estate under the Testators' Family Maintenance Act, RSNS, c 465.
The Letter
[12] The handwritten letter that is at the heart of this application was signed "Bill Casavechia" and is dated Sunday Nov 14/010 [sic]". A copy of this letter is attached to this decision as Schedule A, Page: 15.
[13] The envelope in which it was contained when it was given to Shannon Noseworthy by her father simply bore the name "Shannon". A copy of it is attached to this decision as Schedule B, Page: 16.
The Issue
[14] Does the letter written and signed by William Casavechia demonstrate the testamentary intention required to establish a valid holograph codicil?
The Evidence
[15] Affidavits were filed in support of this application by Shannon Noseworthy, Lloyd Noseworthy, Gary Casavechia and John Casavechia. John Casavechia's affidavit merely confirms that the handwriting and signature on the letter belong to his late brother. Glenna Casavechia filed an affidavit in opposition to the application. Only Mrs. Casavechia was cross‑examined on her affidavit. Several exhibits were filed on behalf of the parties at the hearing.
Affidavit of Shannon Noseworthy
[16] According to the affidavit of Shannon Noseworthy, her father gave her the sealed envelope during a visit she made to his home "on a Sunday" … "[I]n 2010". He instructed her "to put it (the envelope) away and wait to open it for the time being". Ms. Noseworthy's husband, Lloyd Noseworthy, was present when William Casavechia handed her the envelope. Ms. Noseworthy placed the sealed envelope in a safety deposit box.
[17] Ms. Noseworthy says her father often discussed his desire to subdivide and sell his property and to give her a lakefront lot when he did. In fact, he mentioned this so often that Mr. Noseworthy asked him to stop raising the issue until he was ready to act on his promise.
[18] During the visit when William Casavechia gave her the envelope, Ms. Noseworthy remembers her father expressing frustration with Glenna Casavechia's reluctance to entertain reasonable offers that had been made for the property. He discussed one offer for $1.7 million that Ms. Noseworthy believes her father said was for the bottom 17 acres only. According to Ms. Noseworthy, Mrs. Casavechia came by periodically during the conversation and talked about her matrimonial rights, stating that she would not accept the offer and her husband could not sell the property without her permission.
[19] Ms. Noseworthy describes another visit that occurred around the same time in 2010. During this visit, her father pulled out a large set of drawings of his property prepared on blueprint paper. He pointed to a corner lot on the lake that he had outlined. William Casavechia told her that he had chosen that lot for himself, but that "it was too late for him to build on it." He asked her if that lot would be "okay" for her.
[20] In late October or early November 2012, Ms. Noseworthy says that she and her brother Gary met with Mark Penfound, Q.C., the estate solicitor, in order to obtain a copy of their father's Will. Upon leaving Mr. Penfound's office, Ms. Noseworthy remembered the envelope in her safety deposit box. When she returned to her home in Ottawa, she retrieved the envelope and opened it. She recognized her father's handwriting and signature.
[21] Finally, Ms. Noseworthy states that in the two or three years before William Casavechia passed away, he often mentioned his desire to make a new Will when his plans for subdividing the property were complete. He also expressed frustration that the property had not yet been sold.
Affidavit of Lloyd Noseworthy
[22] Lloyd Noseworthy's affidavit confirms that he was present when William Casavechia gave Shannon Noseworthy an envelope and that his wife stored the envelope in their safety deposit box. Like his wife, Mr. Noseworthy was not aware of the contents of the envelope until Ms. Noseworthy returned from Nova Scotia in late October of 2012. Mr. Noseworthy also confirmed that William Casavechia had spoken so often of giving Ms. Noseworthy a lakefront lot that he asked his father‑in‑law not to bring it up again until he was prepared to make the gift a reality.
[23] Mr. Noseworthy's affidavit also addresses an allegation made by Glenna Casavechia that he told her, during a phone call in December of 2012, that he had made William Casavechia write the handwritten letter. Mr. Noseworthy denies that this occurred. He says that he never discussed the letter with William Casavechia nor did he suggest to his father‑in‑law that he should write it. According to Mr. Noseworthy, he had known William Casavechia since the late 1960s and he was "not the kind of person who was easily made to do anything that he did not want to do."
Affidavit of Gary Casavechia
[24] According to Gary Casavechia's affidavit, when he married his wife Donna Casavechia in 1967, his parents gave the couple a one‑week honeymoon in Bermuda. When his sister Shannon married Lloyd Noseworthy in 1969, William Casavechia did not give her a wedding gift at that time.
[25] Gary Casavechia recalls that William Casavechia frequently discussed subdividing his property and giving lakefront lots to him and his sister. He says that his father stopped talking about giving them lots during the last five or ten years before his death.
[26] Gary Casavechia states that his father did not often discuss business with him except during the annual Boxing Day gatherings hosted by Gary and his wife at their home. At these gatherings, William Casavechia frequently discussed his plans to subdivide and sell the property. According to Gary, Glenna Casavechia would object whenever her husband discussed selling or subdividing the property, saying that he could not sell without her permission and objecting to the value he placed on the land.
[27] During a visit in or about February or March 2012, Gary describes his father rolling out a large drawing of the property on blueprint‑type paper in order to show him how he intended to subdivide and sell the land. Gary believes that the drawing was prepared by his father. William Casavechia showed his son a corner lot on Morris Lake which was outlined boldly and had his father's name on it. He told Gary that he intended to keep that lot for himself if the property was subdivided.
[28] In or about February or March 2012, Gary says his father told him that a developer had offered to buy the property from him for $1.2 million, but he wanted $1.6 million. Further offers were exchanged, but the parties could not come to agreement. According to Gary, during their discussion, his father said, "I can't even do a proper Will until I sell this goddamned land."
[29] In late October or early November 2012, Gary confirms that he and his sister Shannon met with the estate solicitor, Mr. Penfound, at his office. Mr. Penfound explained the contents of their father's Will and gave them each a copy. On the drive home, Gary recalls his sister suddenly saying, "Oh my God! I just remembered! Dad gave me a letter and told me to open it after he died!" She then told Gary about the visit with William Casavechia when he handed her the sealed envelope.
Affidavit of Glenna Casavechia
[30] According to Mrs. Casavechia, her husband never talked about giving any land to his daughter or any other family members. She says they never talked about selling the land except near the end of his life and at that point it was only to provide some additional funds to the family and cover expenses. Mrs. Casavechia notes that although her husband may have discussed selling or subdividing the land, he "never actively worked towards such a venture and did not have any formal subdivision plans or surveying work done by a surveyor."
[31] According to Mrs. Casavechia, she has never discussed the subject of her matrimonial rights with Shannon Noseworthy or Lloyd Noseworthy. Nor was she ever present for any conversations between her late husband and his son Gary about subdividing or selling the land.
[32] Mrs. Casavechia recalls that in or about December of 2012, she had a telephone conversation with Lloyd Noseworthy in which he indicated that William Casavechia had always been promising to leave a lakefront lot to Shannon and that he made his father‑in‑law write the letter in question.
[33] With respect to Shannon Noseworthy's suggestion that William Casavechia had received an offer of $1.7 million for 17 acres of land in 2010, Mrs. Casavechia asserts that they listed part of the property for sale at one time but the listing was only for approximately 10 to 12 acres. She says that her husband had a tendency to exaggerate. Mrs. Casavechia denies that her husband was frustrated about not having subdivided and sold the property and says they never discussed moving from the land.
[34] Mrs. Casavechia's states that portions of the land were put up for sale in 2011 without any subdivision having been created. For approximately one year thereafter, a great deal of discussion took place between Mrs. Casavechia, her husband and the real estate agents regarding proposals being put forward by a potential developer. Despite these discussions, nothing concrete was ever formalized with respect to the sale of any portion of the property.
Exhibits
[35] Five exhibits were entered at the Hearing. Exhibit No. 1 consisted of portions of the sale file held by the law firm of Ritch Durnford for 379 Caldwell Road. The documents relate to negotiations that took place between the Casavechias and a developer who was interested in purchasing the property. The correspondence dates from December 16, 2011 to June 11, 2012.
[36] Exhibit No. 2 was a copy of a plan for 379 Caldwell Road obtained from the Land Registry office.
[37] Exhibit No. 3 was a copy of a listing cut for 379 Caldwell Road prepared by Viewpoint Realty. The listing was for 15.4 acres at a price of $1.9 million. The seller reserved the right of one serviced lake lot deeded back to him which was marked by an X on the property plan and corresponds with the location of the lot in issue on this application.
[38] Exhibit No. 4 was a copy of the deed for the first parcel of property purchased by William Casavechia from his brothers and their respective spouses on April 7, 1970.
[39] Exhibit No. 5 was a copy of an option agreement dated April 23, 2010 between William J. Casavechia as optionor and a Nova Scotia limited company as optionee. The agreement granted the optionee a sole and exclusive option to purchase 17 acres of land at 379 Caldwell Road for the purchase price of $1,190,000. The agreement also provided that a "lakefront serviced lot in common with other lots on the south end of the property to be granted to Bill Casavechia." The agreement was signed by William Casavechia.
Cross‑examination of Glenna Casavechia
[40] On cross‑examination, Glenna Casavechia stated that she had never seen the handwritten letter or the envelope prior to William Casavechia's death. She confirmed that the letter was written in her husband's handwriting and that it bears his signature. Mrs. Casavechia said that her husband's health was very good in November of 2010 and there was no reason to doubt his capacity at that time.
[41] Mrs. Casavechia testified that she does not believe the letter represents her late husband's wishes. He had never talked about giving Shannon Noseworthy or any other family member a lakefront lot. According to Mrs. Casavechia, the lot described in the letter and marked on the property plan is one that the couple always intended to keep for themselves. When they initially purchased the property, the first thing they did was clear that lot in order to access the lake. William Casavechia built a wharf and the family enjoyed swimming and skating on the lake. Mrs. Casavechia conceded that while her husband had not expressed to her any intention to give Ms. Noseworthy a lot or any feelings of guilt about not getting his daughter a wedding gift, she did not know what he may have said to other family members when she was not present. Mrs. Casavechia also admitted that her husband did not typically include her in discussions about the property or the family's finances.
[42] When asked about the fact that her name does not appear on the deed to the property, Mrs. Casavechia said that her husband was old‑fashioned. After he divorced his first wife, William Casavechia wanted all of his property, including his bank accounts, to be held in his name alone.
[43] With respect to the allegation in her affidavit that Lloyd Noseworthy said he made William Casavechia write the letter, Mrs. Casavechia testified that she remembered Mr. Noseworthy making this statement during a telephone conversation. She then said that the letter sounds as though both Lloyd and Shannon were advising her husband what to write but "only God knows."
[44] When it was suggested to Mrs. Casavechia that she never wanted to sell the property, she said that she would have been fine with it "if it had been done properly." She was only interested in selling 10 to 12 acres "at the bottom of the hill." She testified that she and her husband had arguments about how much property to sell because she did not want people "in her back yard." Mr. Niedermayer, counsel for Ms. Noseworthy, then referred Mrs. Casavechia to an e‑mail contained in the sale file for the property (Ex. 1). Dated January 10, 2012, the e‑mail is from Carol Hubley, a real estate agent, to Mark Penfound, Q.C., the Casavechias' solicitor. Mr. Niedermayer directed Mrs. Casavechia to the following portion of the e‑mail:
Just between you and I, most of the problems are being caused by Glenna ‑ he just cannot handle the hard time she is giving him, so he is changing the plan to please her.
[45] Mrs. Casavechia disagreed with the suggestion that she gave her husband a hard time. According to her, William Casavechia simply didn't understand that he was trying to sell too much acreage.
[46] Mr. Niedermayer then referred Mrs. Casavechia to the option agreement signed by William Casavechia on April 23, 2010 (Ex. 5). She stated that she was aware of the agreement but did not consent to its contents. In fact, since her husband needed her consent to sell the property, she met with Mr. Penfound and his associate in order to have the agreement annulled. In Mrs. Casavechia's words, William Casavechia "was used to selling things without asking me or wanting my permission." He was "very old‑fashioned."
Law and Analysis
[47] The formalities for the execution of a valid will or codicil are set out at section 6 of the Wills Act, RSNS 1989, c. 505:
6 (1) No will is valid unless it is in writing and executed in manner hereinafter mentioned:
(a) it shall be signed at the end or foot thereof by the testator or by some other person in the testator's presence and by the testator's direction;
(b) such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(c) such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation is necessary.
(2) Notwithstanding subsection (1), a will is valid if it is wholly in the testator's own handwriting and it is signed by the testator.
[48] Section 6(2) was added to the Wills Act as part of a significant amendment in 2006. The amendment was not declared in force until August 2008. With the addition of this subsection, holograph wills and codicils are now permitted in Nova Scotia.
[49] The letter written and signed by William Casavechia does not comply with section 6(1) because it was not witnessed. There is no dispute, however, that it meets the technical requirements of a holograph codicil under section 6(2).
[50] In order to be a valid holographic instrument, the letter must not only comply with section 6(2) of the Wills Act but it must also demonstrate a testamentary intention or animus testandi. As the Supreme Court of Canada noted in Re Gray, supra, at p. 396:
There is no controversy, either in the reasons for judgment in the Courts below, or between the parties, that under the authorities, a holographic paper is not testamentary unless it contains a deliberate or fixed and final expression of intention as to the disposal of property upon death, and that it is incumbent upon the party setting up the paper as testamentary to show, by the contents of the paper itself or by extrinsic evidence, that the paper is of that character and nature… [Emphasis added]
[51] The test in Re Gray was upheld by the Court in Canada Permanent Trust Co. v. Bowman, [1962] SCR 711. In that case, the deceased's family searched the contents of her home but were unable to locate a will. An envelope marked with the words "Last Will and Testament" was found in an unlocked strong box but it was empty. One year later, a paper was discovered in some of the deceased's personal effects. Written and signed by the deceased, the document set out specific bequests to members of her family. Although it did not appoint executors or deal with the residue of the estate, the document disposed of all of the deceased's assets. It was argued that the paper was not testamentary as it contained words that had been crossed out and it was not found in the strong box with the deceased's other important documents. The Court held, however, that the document expressed the wishes of the deceased respecting the disposal of her property. When read as a whole, it was implicit that the disposition was to take place after her death. This conclusion was consistent with extrinsic evidence that the deceased had previously expressed to her niece her intention to make a will. The Court held that the document was a valid holograph will and it was admitted to probate.
[52] Applying the test in Re Gray, I must consider the contents of the letter written and signed by William Casavechia along with the extrinsic evidence offered by the parties to determine whether the document contains a deliberate or fixed and final expression of intention as to the disposal of the lot upon death. For the reasons that follow, I am satisfied that it does.
[53] Although handwritten, the contents of the letter are of a more formal or ceremonious nature than one would expect of an ordinary note from a father to his daughter. For example, William Casavechia begins the letter by referring to his daughter by her full name and notes that she is his "one and only daughter at this time." The letter is dated and signed. William Casavechia placed the letter in a sealed envelope and handed it to Shannon Noseworthy with instructions not to open it for the time being. These facts all suggest that this letter was a significant document that William Casavechia ‑ a man who had reached the age of 93 years by 2010 ‑ did not want his daughter to read until he passed away.
[54] The letter uses the language of "gift". William Casavechia states that the note is to confirm a promise that he will give his daughter a lakefront building lot and he describes the location of the specific lot in detail. All parties agree that the letter refers to the same lakefront lot that the deceased typically reserved to himself when negotiating a sale of the property during his lifetime. The gift is to take effect when William Casavechia's lakefront property is sold. The deceased does not state that the gift is to take effect when he sells the property, but rather, when it is sold. As in Bowman, it can be implied from the language used by the deceased that the disposition is to be made following his death.
[55] William Casavechia goes on to say, "I hope this will be agreed with all concerned". Counsel for Mrs. Casavechia argued that by using this language the deceased intended to make the gift conditional on the agreement of all interested parties. I disagree. According to Mrs. Casavechia's evidence, the deceased was not a person who sought the permission of others to dispose of his property during his lifetime. The interpretation more consistent with the evidence is that this language was an expression of William Casavechia's hope that there would be no disagreements when his wishes were carried out after his death. Finally, the deceased provides a reason for giving his daughter the lot ‑ he never gave her a wedding/honeymoon gift and feels guilty about it. The most reasonable inference is that William Casavechia wanted anyone who would read the letter to understand why he was giving the land to Shannon Noseworthy because he would not be there to explain the gift himself.
[56] With respect to the extrinsic evidence, the affidavits of Shannon Noseworthy, Lloyd Noseworthy and Gary Casavechia indicate that William Casavechia often spoke of selling the property and giving his daughter the lakefront lot. He also spoke of his desire to draft a new will.
[57] Glenna Casavechia testified that William Casavechia always intended for the land described in the letter to be their lot and he never expressed to her any intention to give it to Shannon Noseworthy. I accept that Mrs. Casavechia was not aware of any promises made by her husband to his daughter over the years that he would give her a lakefront lot when he sold the property. I accept that she was not aware that her husband harboured any guilt about a wedding gift or had any intention to amend his will in order to leave the lot to his daughter for this reason. That being said, this would be consistent with her evidence that her husband was old‑fashioned, never discussed property and finances with her, and was accustomed to disposing of property without her knowledge or consent.
[58] Mrs. Casavechia also indicated in her affidavit and on cross‑examination that Lloyd Noseworthy told her, during a phone call in December of 2012, that he made William Casavechia write the letter giving Shannon Noseworthy the lot. The tenor of Ms. Casavechia's evidence during cross‑examination suggested that her relationship with Mr. Noseworthy is strained and I am not satisfied that this incident occurred in the manner she reports.
[59] It was argued by counsel for Ms. Casavechia that the letter does not contain a deliberate or fixed and final expression of William Casavechia's intention as to the disposal of the lakefront lot because the sale file for 379 Caldwell Road contains evidence that he was open to selling the lot with the rest of the property, if the price was right. In my view, the contents of the handwritten letter did not preclude William Casavechia from dealing with the lakefront lot during his lifetime. The letter contains a fixed and final expression of William Casavechia's intention as to the disposal of the lot in the event that the property was not sold before his death. If he had sold the property during his lifetime, the gift to Shannon Noseworthy would have simply failed in accordance with the rule of ademption.
[60] I am satisfied, after considering the document as a whole and assessing the extrinsic evidence, that the handwritten letter meets the test in Re Gray for a valid holograph codicil. The codicil entitles Ms. Noseworthy to ownership of the lakefront lot at the time the remainder of her late father's property at 379 Caldwell Road is sold.
[61] The location and size of the lot devised by codicil to Ms. Noseworthy is described in general terms. The parties will have to try to reach an agreement on the exact location and dimensions of the lot in accordance with existing subdivision requirements. If the parties cannot agree, the corporate executor may make the final determination or seek the assistance of the Court should it become necessary to do so. The Court will retain jurisdiction of the matter for this purpose.
Conclusion
[62] Ms. Noseworthy's application for proof in solemn form is granted and the codicil shall be admitted to probate.
[63] If the parties cannot agree on costs, I invite them to make further written submissions on or before Friday, March 28, 2014.
McDougall, J.
IN THE COURT OF PROBATE FOR NOVA SCOTIA
Citation: Casavechia Estate (Re), 2014 NSSC 73
Date: 20140226
Docket: Hfx No. 418956
Probate Court File No. H-60181
Registry: Halifax
In the Estate of Louis Joseph William Casavechia
also known as William John Casavechia, Deceased
DECISION
Judge: The Honourable Justice Glen G. McDougall
Heard: November 14, 2013, in Halifax, Nova Scotia
Counsel: Richard Niedermayer, Ll.B., and Tanya Butler, Ll.B., for the Applicant Shannon Noseworthy
Helen L. Foote, Ll.B., for the several opponents (namely, Sheldon Casavechia, Nicole Casavechia, Josh Downey, Jace Downey)
Wayne Francis, Ll.B., for the Estate which took no position in the application.
Erratum:
[64] Title page of the decision where it reads “Helen L. Foote, Ll.B., for the several opponents (namely, Sheldon Casavechia, Nicole Casavechia, Josh Downey, Jace Downey), should read: “Helen L. Foote, Ll.B., for the Respondent Glenna Casavechia”; “Sheldon Casavechia and Jace Downey, self-represented Respondents”; and, “No one appearing for Respondents, Nicole Casavechia and Josh Downey.”
McDougall, J.