Originally published in our November 2016 Newsletter
O’Brien Estate (Re), 2016 NSSC 287 http://canlii.ca/t/gv902
In this case from Nova Scotia, a testator had promised to pay the university education of a young student but unexpectedly died suddenly. There was no provision in his Will to pay the ongoing university costs. Does the student have a right to enforce this promise?
The testator was a retired Canadian citizen who had moved to the Bahamas where he met a young man who worked in the restaurant where he often ate. The testator had mobility issues and he asked for and received assistance from the young man around his home and with his personal care. During this time the testator was in a relationship with a woman back in Nova Scotia, Ms. Langille. They each maintained their own residences and separate finances, yet they visited and spent extended time with each other.
In March 2014 the testator offered to pay the young man’s way to Acadia University for a four-year degree and to provide him with an apartment in return for the student assisting him with his daily tasks as he was doing in the Bahamas. According to the student and Ms. Langille, the testator initiated the offer because he liked the student, considered him to be intelligent and wanted to do something good. The student accepted the offer and, sponsored by the testator, he obtained a student VISA and was accepted into Acadia University for the 2014-2015 school year. At the end of the April 2015 school term, the student returned to the Bahamas, with the intention of returning for his second year. Ms. Langille arranged for a caregiver to assist her in providing care to the testator until the student’s return.
In June 2015 the testator, anticipating the student’s return asked Ms. Langille to prepare a cheque to the student for $19,000.00 to cover his 2015-2016 university fees and to give it to him upon the student’s return. Unfortunately, on August 1, 2015 shortly before the student was to return, the testator died at the age of 53. Ms. Langille was named as the personal representative in the deceased’s Will and she honoured the testator’s request and gave the cheque to the student when he returned to Canada. She continued to provide support to him during his second academic year. However by the terms of his Will, the testator had left his entire estate in trust for his own son to be paid to him when he turned 25. There was no provision in the Will to provide for the student’s further education.
An application was made to the court requesting various forms of relief. The student filed a claim to have the estate honour the testator’s commitment to pay for his four year education at Acadia and Ms. Langille applied to be discharged as personal representative and for the alternate personal representative specified in the Will to replace her. She also sought approval of her accounts and a desire to be discharged without further liability to the estate.
The alternate personal representative was given permission by the court, on behalf of the son, to defend the student’s claim and to contest Ms. Langille’s request for approval of her accounts. The alternate personal representative also sought an order that Ms. Langille repay the $19,000.00 given to the student.
In an unreported oral decision, the Court determined that the estate was liable for the student’s university costs for the academic year 2015-2016 and, so long as he remained a full-time student, for the year 2016-2017, but held that the estate was not liable for his claim respecting a fourth academic year. The Court also dismissed the application to have Ms. Langille repay the $19,000.00 to the Estate. Unfortunately there were no reasons or analysis provided for this decision.
With respect to her accounts, Ms. Langille waived her right to compensation and argued that her legal costs should be paid out of the estate. She should not be out of pocket for fulfilling her personal representative duties for which she did not behave improperly. The Court agreed and Ms. Langille was awarded her costs of the applications, plus her reasonable disbursements against the Estate.
Unfortunately, there are no reported reasons as to why the Court determined that the Estate must honour the deceased’s promise to pay for the student’s education. It appears however from the cost decision that there were no documents evidencing this promise, only the testimony of Ms. Langille and the student, which the Court accepted. It is unclear why payment for only three years of schooling rather than four was made. However, this is an interesting case as it shows that there is always a risk a testator has made an enforceable promise which an estate trustee or others may not be aware.
 O’Brien Estate (Re), 2016 NSSC 287. Please note that this is the costs decisions as the underlying decision was not reported.
 2016 NSSC 287 at paras.9 & 10.