Ines Jelic

Following a successful motion for the appointment of an Estate Trustee During Litigation, the applicant residual beneficiary sought costs on a substantial indemnity basis personally against the named estate trustee.

The estate trustee had failed to apply for a certificate of appointment, failed to provide information to beneficiaries, failed to file responding materials on the motion, and failed to attend the hearing.

The court awarded substantial indemnity costs of $20,708.74 payable personally by the estate trustee, finding that his conduct as a fiduciary warranted an elevated cost order and that an award from the estate would unfairly burden the beneficiaries.

The respondent's informal, late, and analytically deficient cost submissions were rejected entirely.

The applicants sought production of solicitor-client privileged records from the deceased's lawyer and leave to examine the lawyer regarding legal services provided to the deceased in May 2021.

The respondent claimed solicitor-client privilege survived the deceased's death and was not subject to the wills exception.

The court found that the wills exception applied because undue influence and lack of capacity were central issues, the solicitor's retainer occurred during a critical window of estate planning, and the timing was closely related to suspicious testamentary documents executed while the deceased was hospitalized.

The court ordered production of the lawyer's file and permitted examination of the lawyer.

Following a nine-day trial where the plaintiffs successfully obtained a declaration that a property transfer was a fraudulent instrument and vested a 72.97% interest in their names, the plaintiffs sought costs.

The plaintiffs had made an offer to settle that they matched or exceeded at trial.

The court rejected the defendants' arguments to depart from the general rule regarding offers to settle, finding the defendants' conduct reprehensible and negligent.

The court awarded the plaintiffs partial indemnity costs up to the date of the offer and substantial indemnity costs thereafter, payable jointly and severally by the defendants.

The applicants sought a declaration that their homeowner's insurer had a duty to defend them in an underlying personal injury action.

The underlying action arose when a tree fell on a man at an uninsured property owned by the applicants.

The plaintiffs in the underlying action alleged the applicants were negligent in failing to hire a competent contractor to remove the tree.

The court held that this allegation could potentially fall within the 'personal actions anywhere in the world' coverage of the policy for the applicants' insured home, triggering the duty to defend.

The court ordered the insurer to defend the action with appropriate safeguards to avoid conflicts of interest, finding the request for independent counsel premature.