Bradley Jay Wiseman

The testator left a life interest in the residue of his estate to his wife, directing that upon her death, the residue be divided equally between his son and daughter, 'per stirpes'.

The son predeceased the life tenant, leaving his estate to his second wife.

The application judge held that the phrase 'per stirpes' indicated an intention to benefit the son's children, rather than his estate or the surviving daughter.

The Court of Appeal dismissed the appeal, finding that while a gift to named children 'per stirpes' can be contradictory, in this context it conveyed the testator's intention to benefit his children's children if either child predeceased the life tenant.

Following litigation concerning the affairs of an incapable person, the court determined costs between family members and the Office of the Public Guardian and Trustee.

One party sought substantial full indemnity costs from the incapable person's estate and additional amounts from another family member.

The court emphasized proportionality in estate litigation involving incapable persons and rejected the expectation that legal costs will routinely be borne by the incapable person's estate.

While finding misconduct and escalation of litigation by multiple parties, the court held that the primary responsibility for prolonging the litigation rested with one party.

The court ordered that each party bear their own costs except that one party pay $10,000 toward another party’s costs, and that the cost of a capacity assessment be reimbursed from the incapable person's estate.