Nova Scotia Court upholds executor’s discretion to refuse an interim distribution from an estate
In a first for Nova Scotia, Foster Estate gives guidance on when the Court will, or will not, order an executor to make an interim distribution from an estate.
A key take away is that the Court will not interfere with an executor’s discretion if it is exercised reasonably.
In Foster Estate v. Foster, 2025 NSSC 317 the Nova Scotia Probate Court heard an application for an interim distribution from an estate. The beneficiaries under the will were three siblings, one of whom was the executor. The executor had made interim distributions of $150,000 to each beneficiary in August 2024 and $50,000 in January 2025. The two other beneficiaries filed an application with the Court seeking a further interim distribution of $75,000.
The Court ruled that it had the power to order an interim distribution under Section 8(1)(c) of the Probate Act, which gave the Court the power to “hear and determine all questions, matters and things in relation thereto necessary for” the judicial administration of the estates.
The will gave the executor absolute discretion on the timing of the distribution of the estate’s assets. The Court ruled that it could only intervene with the executor’s discretion if:
- the executor’s decision was so unreasonable that no honest or fair-dealing trustee could have come to that decision;
- the executor considered matters which were irrelevant to the discretionary decision; or
- the executor did nothing and could not show that he properly considered the exercise of the discretion granted by the will.
The Court held that the executor had exercised his discretion in making the two earlier interim distributions. The Court also considered these factors:
- neither of the other beneficiaries had shown that they needed the money;
- the time between the grant of probate and the application to pass accounts;
- that the application to pass accounts was only five weeks away;
- how much would remain in the estate; and
- the estate’s potential expenses in the ongoing litigation over the executor’s accounts.
Considering all of these factors the Court dismissed the motion for a further interim distribution.
The full text of this case can be found here: Foster Estate v. Foster, 2025 NSSC 317 (CanLII).
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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