Justin W. De Vries

Following the determination of two estate litigation applications, the court assessed costs.

The court found that the estate trustee's application for directions on will interpretation engaged public policy considerations, entitling both parties to costs of $55,000 payable by the Estate.

Conversely, the respondent's application to remove the estate trustee did not engage public policy and was governed by the standard civil costs regime.

The respondent was ordered to pay $35,000 in partial indemnity costs to the estate trustee, who was also entitled to full indemnification of his remaining $20,000 in costs from the Estate.

The moving party brought motions for leave to appeal an order dated July 21, 2021.

The Divisional Court dismissed the motions for leave to appeal.

Costs of both motions were awarded to the responding parties in the fixed amount of $7,500 all inclusive.

The Court of Appeal issued a costs endorsement following its decision on the main appeal.

In accordance with the parties' agreement, the court ordered that the costs of the appeal be paid out of the estate of the deceased.

The successful appellant was awarded $46,000, and the respondents were awarded $25,000.

The deceased left a will that expressly disinherited his daughter, stating she had had no communication with him for several years.

The daughter challenged the will, adducing extrinsic evidence that her father's actual motive was racially discriminatory because she had a child with a white man.

The application judge admitted the evidence and set aside the will on public policy grounds.

The Court of Appeal allowed the appeal, holding that third-party extrinsic evidence of a testator's motive is inadmissible when the will is clear and unambiguous.

Furthermore, the court held that the public policy doctrine cannot be used to void an unconditional, private testamentary bequest based on a testator's alleged discriminatory motive, affirming the principle of testamentary freedom.

The moving parties, estate trustees for the deceased's estate, brought a motion to remove the responding party's daughter as her litigation guardian and attorney for property.

The responding party, who was mentally incapable, had appointed her two children as attorneys, but one withdrew due to a conflict of interest.

The court found that the remaining attorney had a conflict of interest, resided outside the jurisdiction, and had previously depleted the incapable person's funds by selling her home and taking the proceeds.

The court removed the daughter as litigation guardian and appointed the Public Guardian and Trustee to act as litigation guardian and guardian of property.