Daniel Welton-Boucher

The applicant sought costs following a successful application to pass over the respondents and himself as estate trustees.

The applicant claimed full indemnity costs of $76,212.67.

The court applied a blended approach to costs, ordering the self-represented respondent Peter Childs to pay partial indemnity costs of $45,950.22 due to his vexatious conduct and vitriolic attacks.

The balance of $30,262.45 was ordered payable to the applicant out of the Estate.

No costs were awarded against the other respondents.

In an estates application, a sibling sought to pass over all named executors and appoint a neutral estate trustee due to prolonged, high-conflict litigation, deadlock, and allegations of re-litigation of previously determined matters.

The court held that although testamentary choice is to be respected, clear necessity existed because entrenched animosity and mistrust risked compromising proper administration of the estate.

The court found the majority-rule clause did not resolve repeated 2-2 deadlocks, and also found a genuine conflict concern arising from substantial unpaid costs awards to be offset against certain beneficiaries’ shares.

The court ordered all four siblings passed over and appointed a professional trustee without bond, directed that the trustee need not pursue already adjudicated litigation issues, declined to determine standing objections in a separate passing-of-accounts proceeding, and gave directions regarding implementation and holdback of costs awards.

Costs were reserved pending written submissions.