Ellen M. Snow

Following the settlement of an estate litigation dispute regarding the validity of a will, the parties sought a determination on costs.

The respondent sought partial indemnity costs from the applicant personally, claiming success in the settlement.

The applicant, as estate trustee, sought reimbursement from the estate for her legal expenses.

The court found that neither party was successful and ordered no costs as between the parties.

However, the court held that the applicant acted reasonably in defending the will and was entitled to be fully indemnified by the estate for her legal expenses in the amount of $38,676.13.

Following a prior decision granting partial relief to the applicants with no order as to costs, the respondents sought to vary the costs order based on a Rule 49 offer to settle.

The respondents argued they were entitled to substantial indemnity costs or, alternatively, partial indemnity costs following the offer because the judgment was no more favourable than the offer.

The court rejected the claim for substantial indemnity costs and declined to vary the earlier order.

Considering the divided success and circumstances of the litigation, the court held that the original no-costs order remained appropriate.

The applicants sought to set aside a share valuation conducted pursuant to a unanimous shareholders' agreement following the exercise of a put right requiring the purchase of their minority shareholding.

The agreement required the valuator to determine fair market value using generally accepted valuation principles and provided that the valuator's determination would be final and binding.

The court held that judicial intervention is limited to circumstances where the valuator fails to comply with the contractual mandate, not merely where alleged valuation errors occur.

Most complaints raised by the applicants related to matters of professional judgment and therefore did not justify court intervention.

However, the valuator failed to comply with generally accepted valuation standards regarding the analysis of working capital.

Rather than setting aside the entire valuation report, the court ordered a limited independent analysis to determine the appropriate working capital adjustment while leaving the remainder of the valuation intact.