Liam Donald Thomas Rafferty

This costs decision in an estate litigation matter addresses the modern approach to costs in estate proceedings.

The court reviews the principles from Sawdon Estate v. Watch Tower and Salter v. Salter Estate, emphasizing that costs are generally to be paid by the unsuccessful party, with the estate indemnifying the estate trustee for any shortfall.

The court finds that both parties acted reasonably in litigating the issue of a holograph will, and orders that all parties' costs be paid out of the estate, balancing fairness, proportionality, and access to justice.

The applicant sought to validate a purported holograph will that bequeathed the deceased's home and contents to her, effectively disinheriting her other children, contrary to previous wills.

The court found suspicious circumstances, including the complete lack of evidence regarding the will's creation, the significant change from prior wills, and the deceased's declining cognitive function.

The applicant failed to discharge the onus of proving the deceased's testamentary capacity and knowledge and approval of the document.

The application was dismissed.

This decision concerns a voir dire on the admissibility of an expert report in an application to determine the validity of a holograph will.

The applicant sought to validate a 2016 holograph will, while the respondents argued the deceased lacked testamentary capacity, asserting a 2012 lawyer-prepared will was the only lawful one.

The respondents retained a geriatric psychiatrist, Dr. Hermann, to provide an opinion on the deceased's testamentary capacity and susceptibility to undue influence.

The applicant challenged the report's admissibility under the Mohan test, arguing it was not necessary and that Dr. Hermann was not qualified or impartial.

The court found the report necessary to understand complex medical concepts and that Dr. Hermann was qualified and impartial, ruling the expert report admissible.

The applicant, an estate trustee, sought increased costs on a full indemnity basis for an Application to Pass Accounts.

The respondent, a beneficiary, opposed this, alleging the application was unnecessary and the trustee's compensation was generous.

The court found the applicant's actions prudent and necessary due to the respondent's baseless allegations and refusal to engage in an informal accounting process in New Brunswick.

The court awarded the applicant increased costs of $24,182.47, payable from the respondent's share of the estate, to avoid penalizing the other beneficiary.