Peter Sengbush

Following a trial in which the applicant’s challenge to a will was dismissed, the successful party sought costs.

The unsuccessful party argued that the challenge had been reasonable and that costs should be paid out of the estate.

The court found no suspicious circumstances surrounding the will and no conduct by the successful party that would justify departing from the usual rule that costs follow the event.

Applying Rule 57 of the Rules of Civil Procedure, the court awarded costs to the successful party on a partial indemnity basis and declined to order that costs be paid from the estate.

Costs were fixed inclusive of disbursements and HST.

A will challenge concerning testamentary capacity and knowledge and approval of a will executed shortly before the testator’s death.

The applicant nephew argued the testator lacked capacity when she executed a will that excluded him and left the estate to another nephew and his spouse.

The court reviewed medical evidence, the solicitor’s testimony regarding the execution of the will, and the surrounding circumstances, including alleged suspicious circumstances due to the testator’s declining health and the significant change from a prior will.

Applying the principles in Vout v. Hay and Scott v. Cousins, the court held that the propounder established on a balance of probabilities that the testator had testamentary capacity and understood and approved the contents of the will.

The impugned will was therefore upheld.