DeVenne v. DeVenne (Part II): Breach of Duty
This is Part Two of a series discussing a recent case, DeVenne v. DeVenne, 2026 NSSC 61 (CanLII), involving a power of attorney lawsuit in Nova Scotia.
Part One of this series discussed whether the power of attorney was valid in light of the grantor’s declining health. This part reviews the Court’s decision on whether or not the attorneys breached their duty.
Under the New Brunswick Enduring Power of Attorney Act, attorneys have a duty to act honestly, in good faith, exercise reasonable care, and act within the authority of the power of attorney.
There is also a duty to make decisions in accordance with the instructions given by the grantor when the grantor had capacity, in accordance with the grantor’s current wishes, or – if the wishes of the grantor cannot be determined or are unreasonable – to make the decision that the attorney believes the grantor would make.
Finally, if the attorney cannot determine what decision the grantor would make, the attorney must make a decision in the best interests of the grantor. There is an explicit prohibition in the Act on making any gifts. There are also detailed requirements in the Act on keeping records and accounts. The Nova Scotia legislation and requirements are similar.
In DeVenne the Court found that Wesley, in his role as attorney, was required to be guided in his decisions by the best interests of his mother, Ms. Matheson.
Wesley had moved his mother’s money out of the accounts that were joint with his mother’s partner Mr. Olive because “he didn’t trust him”. The Court did not accept this evidence because there was nothing to justify the idea that the partner was not trustworthy. Mr. Olive had previously handled Ms. Matheson’s finances and he never used any of her money for himself.
Wesley also took $10,752.79 from an account that was not joint with his mother’s partner with no explanation.
Wesley took the money and used it to sign a “gift letter” to qualify for a mortgage. Once the purchase of the home was done, the money was put back into an account that was just in Wesley’s name.
The Court found that both Wesley and his wife Judith breached their duties under the Act by giving themselves the downpayment for the purchase of the property.
The case is an example of the importance of a power of attorney following the requirements in the document, the legislation, and at common law to act in the interests of the grantor. The Court ordered that the $25,000 remaining in Wesley’s account be transferred to Ms. Matheson’s estate forthwith. The Court also noted that it could not establish on a balance of probabilities that Wesley had spent any additional funds for personal purposes.
The third and final part of this series will review the Court’s discussion of whether the attorneys should be relieved from any breach, and what remedy should be granted.
This client update is provided for general information only and does not constitute legal advice. If you have any questions about the above, please contact the author, Tipper McEwan. Tipper is a partner in Stewart McKelvey’s advocacy group who practices in the areas of estate litigation, insurance, and commercial litigation.
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