Lou-Anne F. Farrell

The respondent Penelope Provost was successful on a motion to transfer the proceeding from London to Chatham and sought her costs on a substantial or full indemnity basis.

The applicant and other respondents opposed, arguing for no costs or costs in the cause due to divided success and reasonable conduct.

The court found no reprehensible conduct to justify an elevated scale and fixed costs on a partial indemnity basis at $2,500, payable in the cause by the applicant and one respondent jointly and severally.

The respondent brought a motion to transfer the applicant's estate litigation proceeding from London to Chatham.

The court applied the holistic approach under Rule 13.1.02(2) of the Rules of Civil Procedure and found that the respondent established Chatham was a significantly better venue, given that all parties and the subject property were located in Chatham-Kent, and related proceedings were already commenced there.

The motion to transfer was granted.

The respondent's additional requests to appoint a case management judge and direct a case conference were adjourned as premature pending a scheduled consolidation motion.

The estate trustee brought an application for directions regarding a will that granted the respondent a 'home' for his 'lifetime' or until he was 'no longer living' there.

The court had to determine whether the will granted a life estate or a licence, and whether the condition of 'no longer living' in the home was void for uncertainty.

The court found that the will granted a licence to occupy the home, not a life estate.

Furthermore, the condition subsequent 'no longer living' was found to be void for uncertainty.

Because the interest was a licence, the failure of the condition subsequent caused the entire gift to fail, and the property was ordered to be sold with proceeds going to the residual charity beneficiary.

The applicants and respondents, siblings, settled an estate litigation matter regarding their mother's estate and the respondents' actions as attorneys for property and estate trustees.

The settlement left the issue of costs to be determined by the court.

Both the applicants and the respondents sought their costs on a substantial indemnity basis.

The court found that the commencement of the application was reasonable and that the respondents had failed to adequately address the applicants' reasonable questions early on.

However, given the divided success in the settlement, the court ordered that each party bear their own costs.