Benjamin David Arkin

The court fixed costs for the Estate of Robert MacNeil and an individual personally at $75,000, to be paid by the respondent.

The costs were allocated $55,000 to the Estate and $20,000 to the individual personally.

The court directed that the respondent's share of townhouse proceeds ($24,624.42) be paid to his counsel for fees and a mediator's invoice, and the remaining costs be paid from the respondent's 5% interest in the Estate.

The court declined to recognize the respondent's counsel's claim for a charging order.

The applicant estate trustee sought to recover the estate's interest in a townhouse co-owned by the deceased and the respondent.

The respondent claimed the property by right of survivorship, arguing the joint tenancy was never severed, and brought a cross-application for unjust enrichment regarding beneficiary designations.

The court found that the joint tenancy had been severed by mutual agreement prior to the deceased's death, making them tenants in common.

The respondent's cross-application for unjust enrichment and constructive trust was dismissed, as was the estate's motion for contempt regarding the respondent's delay in signing closing documents.

Following a successful appeal in an estate litigation matter, the appellants sought costs for both the motion below and the appeal.

The Court of Appeal awarded the appellants their full requested costs for the motion below, totaling approximately $319,000, noting these were less than the costs originally awarded to the respondents.

For the appeal, the court awarded partial indemnity costs of $100,000 and $75,000 to the respective appellants.

The court rejected the argument that the issues were sufficiently novel to depart from the normal costs rules, and held that the public policy considerations for a blended costs award payable from the estate were not engaged.

The appellants challenged the validity of the testator's 2010 wills on the basis of lack of testamentary capacity and undue influence.

The respondents successfully moved to dismiss the challenges on the basis that they were barred by the equitable doctrines of estoppel by representation and estoppel by convention.

The Court of Appeal allowed the appeal, holding that the equitable doctrines of estoppel do not apply to bar a challenge to the validity of a will.

The Court also held that an interested person does not have an automatic right under rule 75.01 of the Rules of Civil Procedure to require that a will be proved in solemn form, as the court retains discretion over whether and how a testamentary instrument is proved.

Following an earlier order granting comprehensive directions concerning the administration of two related estates, the applicants sought costs.

The applicants had successfully obtained an order requiring, among other things, preservation of estate assets and directions relating to the administration of the estates and the conduct of attorneys acting under a power of attorney.

The court found that the responding estate trustees had taken unreasonable positions by refusing to provide an informal accounting and declining reasonable settlement efforts.

Applying the principles of proportionality and reasonableness under Rule 57.01, the court awarded full indemnity costs to the applicants.

Costs were ordered partly against the respondent trustees personally and partly payable from the capital of one of the estates.

In estate litigation concerning whether $1.3 million transferred by a deceased to the defendant was a loan or gift, the defendants sought costs related to steps taken to remove the plaintiffs’ original counsel due to an alleged conflict of interest arising from counsel’s participation in discussions with the deceased before death.

The court held that the defendant was entitled to costs because the plaintiffs ultimately conceded the removal of counsel after significant preparation had already been undertaken.

However, the court found the circumstances did not justify substantial indemnity costs, emphasizing that no party’s conduct was reprehensible and that the motion itself would not have been complex.

Costs were therefore awarded on a partial indemnity basis in the amount of $15,000 inclusive of disbursements and taxes.

The court also directed that the defendant’s request for leave to bring a late dependant’s relief claim under the Succession Law Reform Act should be determined at trial rather than through a separate pretrial motion.

The applicants brought a motion for an Order for Directions regarding the estates of Enrico and Ida Carfagnini.

They sought to consolidate the two actions, obtain a preservation order, compel the passing of accounts by Ida's attorneys for property, and order the disclosure of third-party solicitor and financial records.

The respondents opposed the consolidation and the preservation order for Enrico's estate.

The court granted the applicants' motion, ordering the consolidation of the actions, a preservation order for both estates, the passing of accounts, and the requested disclosure, finding that the issues in both estates were intertwined and raised significant concerns.

The applicant sought costs of $61,486.11 on a full indemnity basis following the respondent's unsuccessful motion for a stay.

The respondent argued for no costs due to divided success.

The court found the applicant was entitled to costs as the successful party under rule 24(1) of the Family Law Rules, but declined to award full indemnity costs.

Finding the amount sought excessive for a non-complex motion, the court awarded costs fixed at $7,500 inclusive.