Derek Raymond Fazakas

This is a costs decision following a judgment that set aside a will and power of attorney due to undue influence by Robert Graham.

The applicant, Timothy Graham, sought costs from Robert personally.

The court found Robert liable for costs due to his actions in the making of the will and transfer of assets.

The court fixed partial indemnity costs payable by Robert to Timothy and also awarded a portion of Timothy's costs to be paid from the estate, recognizing the benefit to other siblings.

The court declined to award costs on a higher than partial indemnity scale, noting that Timothy's settlement offer did not qualify as a Rule 49 offer.

The applicant sought a declaration of beneficial ownership of a property, arguing for a bare trust or, alternatively, a constructive trust due to unjust enrichment.

The respondents, estates of former officers, claimed ownership.

The court found no express bare trust due to lack of certainty of intention and objects.

However, it found unjust enrichment of the respondents' estates and corresponding deprivation of the applicant, with no juristic reason for the enrichment.

A remedial constructive trust was imposed on the sale proceeds, with the applicant receiving 75% and the respondents' estates receiving 25%.

The applicant challenged the validity of a will and power of attorney (POA) signed by the deceased, Jacqueline Pearl Graham, alleging lack of testamentary capacity, lack of knowledge and approval, undue influence, and suspicious circumstances.

The will named one son, Robert Graham, as sole beneficiary and estate trustee, and the POA allowed him to transfer the deceased's house to himself.

The court found suspicious circumstances, shifting the burden to Robert to prove capacity and knowledge/approval.

The court concluded that Robert failed to meet this burden, declared the will and POA invalid, and set aside the transfer of the house.

Concetta Angeloni, through her litigation guardians, successfully moved for directions, an accounting of her deceased husband's management of her property under a Power of Attorney, and an accounting of his estate assets by the Estate Trustee, Maria Lugonia.

The court also granted orders to prohibit dissipation of estate assets and compel document production and examinations.

This endorsement addresses the costs of these motions, which were awarded to the applicant on a substantial indemnity basis due to the respondents' unreasonable delays and failure to respond to settlement offers.

In estate litigation arising from a will challenge, the respondent sought an order requiring the applicant to pay her share of proceeds from the sale of estate property into court pending resolution of the dispute.

The moving party argued that the applicant held title to the property in trust and should not retain the funds while challenging the will.

The court held that ordering payment of the proceeds would constitute substantive relief unsupported by an evidentiary record and inappropriate at the preliminary stage of proceedings.

The litigation was at an early stage with no pleadings exchanged.

The motion was therefore dismissed.