Nicholas Tibollo

Following a ten-day trial regarding an estate dispute where success was divided, the parties sought costs.

The applicants sought substantial indemnity costs of over $343,000, while the respondent sought partial indemnity costs of over $172,000.

The court reviewed the modern costs rules governing estates litigation and the indemnification of estate trustees.

Finding that all parties acted unreasonably in certain respects, were motivated by self-interest, and that the litigation fees were disproportionate to the estate's value, the court declined to award costs for legal fees to any party.

However, the court ordered that the $53,000 disbursement for the forensic accountant's report be paid to the applicants from the estate.

The applicants, granddaughters of the deceased, brought an action against the respondent, their aunt, seeking to set aside a 2008 agreement that transferred the deceased's interest in her home and pension income to the respondent in exchange for lifelong care.

The respondent had acted under a power of attorney for property.

The court found that the deceased lacked capacity to enter the agreement and that the respondent breached her fiduciary duties under the Substitute Decisions Act by making a transfer that was not 'reasonably necessary' for the deceased's care.

The agreement was set aside, and the respondent was ordered to return the property interest to the estate and account for commingled funds.

However, the court recognized the extraordinary care the respondent provided to the deceased and awarded her $273,039.54 in quantum meruit compensation as an equitable set-off against the estate.

The court declined to remove the respondent as an estate trustee or award punitive damages.

The plaintiffs brought an urgent motion for the return of confidential information held by their former employee, the defendant, on her personal computer.

The defendant had been terminated and was sued for allegedly stealing over $400,000, while she counterclaimed for wrongful termination.

The parties agreed to have an independent IT expert copy and delete the confidential information, but disputed whether the expert should image the entire hard drive for preservation and whether the defendant should swear an affirmation confirming all confidential documents were produced.

The court ordered that the hard drive be imaged and preserved by an independent third party to prevent future disputes, and required the defendant to provide a sworn confirmation.