Ontario Superior Court of Justice

Court File No.: CV-21-00000309-0000
Date: 2025-01-22

In the estate of Elizabeth Margaret Anderson, deceased

Between

Wendy Isabel Anderson
Applicant

and

Estate of Elizabeth Margaret Anderson, deceased, Douglas Thomas Anderson, Robert Walter Anderson and Diane Catherine Wray
Respondents

Appearances:
S. McMahon, for the Applicant
L. Rafferty, for the Respondents, Douglas Thomas Anderson and Robert Walter Anderson
A. Hummel and T. Lin, for the Respondent, Diane Catherine Wray

Heard: In writing

Application under the Succession Law Reform Act, RSO 1990, c S.26, ss. 6 and 7 and the Rules of Civil Procedure, RRO 1990, Reg 194, r. 14.05(3)

Tranmer J.

Costs Decision

1In Sawdon Estate v. Watch Tower, 2014 ONCA 101, the court held that the estate trustee is entitled to recover costs on a partial indemnity basis from the unsuccessful party, and the balance of its costs from the estate.

2Estate trustees are entitled to be indemnified for all reasonably incurred costs including legal costs (para. 82).

3The court noted that historically, in estate litigation, the courts would order the estate to bear the costs of all parties.

4It pointed out that this historical approach created the danger that estates would be unreasonably depleted because of unwarranted or needlessly protracted litigation.

5The court adopted a modern approach whereby the court is to carefully scrutinize the litigation and, unless it finds that one or more of the relevant public policy considerations apply, it shall follow the costs rules that apply in civil litigation. It pointed out that the public policy considerations at play in estate litigation are primarily of two sorts:

1. The need to give effect to valid wills that reflect the intention of competent testators, and
2. The need to ensure that estates are properly administered.

In terms of the latter consideration, it is desirable that the matter be resolved by the courts; indeed, resorting to the courts may be the only method to ensure that the estate is properly administered.

6The court stated that where the problems giving rise to the litigation were caused by the testator, it is appropriate that the testator, through his or her estate, bear the cost of their resolution. The court stated that it ought not fall to the estate trustee to pay the costs associated with having the court resolve the problems.

7The court held that one of the estate trustee’s duties is to call in the assets of the estate, including in that case the status of the subject bank accounts. The estate benefits from being properly administered and proper administration required the court’s determination as to the ownership of the monies in the subject bank accounts.

8The court held that the costs award in the case would be a blend with the losing party being liable to pay the estate trustees partial indemnity costs and the estate being obliged to indemnify the estate trustee for his costs not recovered from the losing party.

9The court went on to say that the modern approach to costs in estate litigation, which seeks to ensure that estates are not depleted through the costs of unnecessary litigation, supports the availability of a blended approach. At paragraph 96, the court cited Justice Brown’s decision in Salter v. Salter Estate, upholding the loser pays principle in estate litigation in order to inject some modicum of reasonableness into decisions about whether to litigate estate related disputes.

10In the Anderson case, the testator’s actions gave rise to the necessity of this litigation. I found that she created a holograph will.

11In their submissions as to costs, both parties blame the other for the extent and costs of the litigation. They attended mediation but that failed to resolve the matter.

12The respondents complain that the Application attacked virtually the entirety of the estate, the testator’s home. But the applicant was relying on her mother’s holograph will to maintain the only home that she had lived in, including with her daughter, for the past 30 years.

13I was advised that the home had a value of approximately $500,000. The bills of costs submitted by the parties are in the order of $200,000 in total. Both sides continued the litigation in the face of this reality.

14I cannot find that in litigating the issue of the holograph will either side acted unreasonably. The issue was important to both sides, the applicant’s future home, and the respondents’ determination of the extent of the estate and identifying the residue.

15In considering this question of costs, I have to consider the factors set out in Rule 57. I find that the litigation was not complex. I find that no party acted with a view to shortening or lengthening unnecessarily the duration of the proceedings, which entailed one half day for the voir dire issue and one half day for the substantive issue. I do not factor in the applicant’s refusal to admit the expert evidence. She is entitled to do so.

16The respondents made allegations of coercion, undue influence, fraud and lack of testamentary capacity. They did not succeed on those allegations.

17The applicant was unsuccessful because she failed to meet the shifted burden of proof arising from the presence of suspicious circumstances.

18The hourly rates charged by the lawyers is consistent with the grid as recently updated.

19I am concerned about the hours claimed by counsel for the two sets of respondents. Counsel split their responsibilities as between the voir dire and the substantive issue, yet, combined, incurred hours more than double that of counsel for the applicant. Put another way, counsel for the respondents each incurred hours in excess of that incurred by counsel for the applicant. If I were to apply the general rules of costs applicable to civil litigation, I would cut the hours claimed by counsel for the respondents in half.

20The principles of fairness and reasonableness apply on the issue of an award of costs. The court must consider the reasonable expectations of the parties. On this point, both sides have filed bills of costs which include the two separate bills of costs incurred by the respondents.

21An award of costs must be proportionate and in that regard the court must take into consideration the means of the applicant as disclosed in the evidence, and the costs claimed in relation to the value of the home, the main asset.

22The court must balance the principle of indemnity with the fundamental principle of access to justice.

23As I have pointed out, it was the actions of the testator in creating the holograph will that lead the parties to this point.

24Ultimately, and bearing in mind the law cited to me by counsel, costs are in the discretion of the court.

25In this case, that discretion leads me to order that the costs of all of the parties are to be paid out of the estate.

Tranmer J.