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Wills, Estates & Trusts Law - Proceedings - Practice and procedure - Costs

Thursday, November 10, 2016 @ 7:00 PM  


Appeal by Roberta Cook and Ruth Estabrooks from the award of costs they received in successfully defending estate litigation. Roberta and Ruth sought solicitor-client costs, while the unsuccessful plaintiffs in the litigation also argued that they should have been awarded solicitor-client costs. Jarvis Estabrooks executed his last will and testament on May 3, 2001. The will was accidentally destroyed while Jarvis sorted through papers. That will provided for $40,000 bequests to each of two of Jarvis’s daughters, while his other three daughters were largely disinherited. The vast majority of the estate was bequeathed to two nieces, Roberta and Ruth. Ruth was also named executrix. Jarvis died in January 2012. Ruth applied for probate. The daughters filed caveats, asserting their entitlements to share in the distribution of the estate as dependants. The daughters subsequently amended their claims to argue that Jarvis intentionally destroyed his will and therefore died intestate. Ruth and Roberta offered to settle for $80,000 all-inclusive on September 8, 2014. The daughters countered with an offer to accept $350,000. The court in part relied on evidence from Jarvis’s friend Shaw in finding that the destruction of the will was unintentional, and that Jarvis was unconcerned because he had a copy of the will filed with his lawyer. The court awarded $870,000 in party and party costs to Roberta and Ruth, payable by the estate. He denied Ruth and Roberta solicitor-client costs from the date of the settlement offer because the daughters’ claim was not dubious, because the $80,000 offer represented less than 10 per cent of the potential recovery, and because the daughters narrowed their issues before trial, abandoned their claims of dependency, provided security for costs and consented to the taking of evidence by way of commission before the trial.

HELD: Appeal allowed in part. Because there were reasonable and sufficient grounds to initiate the action, the daughters were entitled to party and party costs payable by the estate to the date of the $80,000 settlement offer. The estate, as well as Ruth and Roberta, were entitled to party and party costs from the daughters from the date of the offer. Ruth and Roberta were entitled to party and party costs from the commencement of the litigation, payable by the estate. The threshold for establishing exceptional circumstances warranting solicitor-client costs was not reached. In awarding costs, the judge erred in failing to consider the fact that the daughters gave false testimony in discovery hearings, as well as their acknowledgement that they did not have evidence to support their allegations that Ruth and Roberta exerted undue influence over Jarvis. Although they did not specifically plead undue influence, the daughters pursued this allegation, which was not reflected in the costs award. The judge should not have ignored the daughters’ conduct which, together with their rejection of the settlement offer, called into question the costs award.