IN THE SUPREME COURT OF NOVA SCOTIA
Citation: Wright v. Cournoyer, 2003 NSSC 092
Date: 20030507
Docket: 166177
Registry: Halifax
Between:
Warren Wright, Blaine Arthur Wright, Murray Allison Wright,
Brenda Anne Doherty, and Jean Cleary
Plaintiffs
v.
Linda Alice Cournoyer
Defendant
Judge: The Honourable Justice Frank Edwards
Heard: April 15, 16 & 17, 2003, in Halifax, Nova Scotia
Counsel: Ms. Helen L. Foote, for the Plaintiffs
Colin D. Bryson, Esq., for the Defendant
By the Court:
[1] The Plaintiffs seek a detailed accounting from their sister of her dealings with their mother’s financial affairs pursuant to a Power of Attorney. The Plaintiffs are five of the children of Bessy Marion Wright who died on August 8, 1999, at the age of 86. From 1992 until her death, Ms. Wright lived with her daughter, Linda Cournoyer, the Defendant.
[2] On November 12, 1992, Ms. Wright gave the Defendant a general Power of Attorney. As well, from 1992 onward, the Defendant’s name was also on Ms. Wright’s bank account. The bank account was used solely for Ms. Wright’s money, there being no co-mingling of any of Ms. Cournoyer’s money in this account. All monies that remained in this account at the time of Ms. Wright’s death were transferred to an estate account.
[3] Ms. Wright executed her last Will and Testament on December 13, 1996. Probate of the Will was granted to Linda Alice Cournoyer as Executrix on September 29, 1999. Ms. Cournoyer filed an inventory with the Probate Court showing her mother’s assets at the time of her death totalled $56,089.74. The Plaintiffs expected that there would be assets in excess of $100,000.00. The basis of the Plaintiffs’ expectation is that their mother had sold two properties she owned respectively on November 13, 1992, and March 1, 1993. The net proceeds from the former sale was $49,897.25 and from the latter, $51,037.83. In addition, their mother also collected pensions ranging between approximately $1,100.00 per month to $1,300.00 per month from 1992 until her death. The Plaintiffs were aware that Ms. Cournoyer was charging her mother approximately $500.00 rent per month. They feel therefore that their mother should have been able to live solely on her pension income without ever having to have touched the principal from the proceeds of the sale of her two properties. In short, they believe that approximately $50,000.00 of their mother’s money is missing.
[4] The Defendant’s position is that her mother was mentally competent and completely able to manage her own financial affairs from 1992 until her death in 1999. Ms. Cournoyer says that the reason for the Power of Attorney and the joint bank account was her mother’s convenience. Ms. Wright was physically infirmed and unable to easily get back and forth to a bank. Ms. Cournoyer would cash cheques for her mother or make cash withdrawals at her mother’s request and bring the money to her. She says that her mother received the bank statement at the end of each month and was well able to read and understand the bank statements. She says that on all occasions the money was withdrawn at her mother’s instruction. Ms. Cournoyer testified that her mother had excess funds for the first time in her life after the sale of her two properties. She was a generous person who shared her new-found prosperity with others, especially her church and members of Ms. Cournoyer’s family, including Ms. Cournoyer herself.
[5] In December 1994, Ms. Wright lent Ms. Cournoyer and her husband $19,000.00 to purchase a new motor vehicle. Ms. Cournoyer testified that her mother had wished to give her the money for the car but that Ms. Cournoyer refused and took a loan instead. She says she repaid approximately $2,000.00 and deposited the remaining $17,000.00 in the estate account after her mother died.
[6] On the issue of Ms. Wright’s competency, I heard evidence from her family doctor, Dr. Hilda Fox. Dr. Fox was Ms. Wright’s family doctor between 1988 and 1999. Dr. Fox’s records show that she saw Ms. Wright 36 times between 1996 and 1999. The essence of Dr. Fox’s evidence is that Bessy Wright displayed no evidence of any mental incompetence. In that regard, her evidence is consistent with that of Linda Cournoyer and Linda Cournoyer’s 21 year old daughter, Celine Cournoyer. I also heard from Barbara Gidney, a 43 year old lady who has known Bessy Wright for eight years prior to her death. Ms. Gidney had regular visits with Ms. Wright as part of regular church fellowship. She was confident that Ms. Wright was mentally alert.
[7] The only evidence which suggested Ms. Wright was not mentally competent was that of the Plaintiff, Brenda Anne Doherty. Ms. Doherty described two telephone conversations with her mother. On one occasion, her mother apparently forgot to whom she was speaking, and in another, forgot that she had received a package sent a few days before by Ms. Doherty. These instances were put to Dr. Fox on cross-examination. In Dr. Fox’s opinion, such lapses are normal and are not a concern unless they are repeated “over and over again”.
[8] I have no difficulty in concluding that Bessy Wright was mentally competent at the time of her death. As such, she had the ability to manage her own financial affairs and to spend or give away her money as she pleased. As far as Linda Cournoyer is concerned, she could only be called upon to account for her use of he Power of Attorney if she had used the Power of Attorney during the incapacity of her mother.
[9] Section 5 of the Powers of Attorney Act, R.S.N.S. 1989, c. 352 reads as follows:
“5.(1) Where a donor of an enduring power of attorney becomes legally incapacitated, a judge of the Trial Division of the Supreme Court may for cause, on application,
(a) require the attorney to have accounts passed for any transaction in involving the exercise of the power during the incapacity of the donor;
(b) require the attorney to attend to sow cause for the attorney’s failure to do anything that the attorney is required to do as attorney or any order made pursuant to this Act;
5.(2) Where an attorney is ordered to have accounts passed, the attorney shall submit the accounts for approval to the Court or, where a judge of the Court so orders, to the Public Trustee at such intervals as the judge may order and, when approved, the attorney shall file the accounts with the Prothonotary of the Supreme Court for the county where the application is heard.”
[10] Accordingly, I am dismissing the Plaintiffs’ action. Ms. Wright never suffered from any mental incapacity during her life time and therefore Ms. Cournoyer is not required to account to the Plaintiffs for her dealings with her mother’s finances.
[11] As the successful litigant, Ms. Cournoyer is entitled to her costs which I assess on the basis of an amount involved of $50,000.00. Under Scale 3 of Tariff “A” she is therefore entitled to $4,875.00 in costs plus reasonable disbursements to be taxed. The Plaintiffs are jointly and severely liable for payment of these costs which may be deducted from their respective entitlements in the estate.
Order accordingly.
J.