CITATION: Orde v. Foster, 2026 ONSC 4090
PETERBOROUGH COURT FILE NO.: CV-22-00000033-00ES
SUPERIOR COURT OF JUSTICE – ONTARIO
IN THE ESTATE OF WILLIAM WAYNE BROWN, deceased.
RE: Roger Orde et al. v. Christine Foster et al.
BEFORE: THE HON. MADAM JUSTICE A.A. CASULLO
COUNSEL: Kavina Nagrani, Nithila Murugadas, for the Applicants
Nipuni Panamaldeniya, for the Respondent Christine Foster
Jeffrey Ayotte, for the Respondent Gail Brown
Robert O’Brien, for the Respondent Michael McRea, Estate Trustee for Kerrie McCrea
HEARD: March 25, 2026
COSTS ENDORSEMENT
Overview
1By way of Application commenced in February 2022, the Applicants sought a declaration invalidating the January 24, 2020 will (“2020 Will”) of William Wayne Brown (“Wayne”) on the grounds of undue influence and testamentary incapacity.
2There ensued a number of motions including a consent order for production, the addition of parties, and the limited appointment of estate trustees to facilitate the liquidation of Wayne’s assets (the “Estate”), which was valued at $550,000 at the time of Wayne’s passing.
3On April 11 and May 1, 2025, I heard the Respondents’ minimum evidentiary threshold (“MET”) motion, as well as the Applicants’ motion for further production.
4On August 27, 2025, I granted the Respondents’ motion. I found that the Applicants had not met the minimum evidentiary threshold on the grounds that there was no evidence which, if accepted, would call into question the validity of the 2020 Will. I specifically found that Wayne did not lack the capacity to draft the 2020 Will and that the allegations of Christine’s undue influence over Wayne to her benefit were based solely on supposition and speculation. In other words, there was no reasonable grounds to question the will and no triable issues.
5I dismissed the Applicants’ motion for further production as an effort to try and uncover some evidence to support their position.
6I advised that, in the event my decision led the Applicants to abandon their will challenge, I would decide the costs of the motions.
7The Applicants served their Notice of Abandonment on the Respondents on December 10, 2025.
8Rule 38.08(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”), provides that where an application has been abandoned, a respondent is entitled to their costs of the application, unless the court orders otherwise.
9Thus, I am tasked with determining not just the costs of the MET motion and motion for further production but costs of the Application to the date of the motions.
10On March 25, 2026, I heard costs submissions virtually. What follows is my decision on costs.
The Parties
11As with my Endorsement, I will use given names to avoid confusion.
12The deceased is Wayne Brown. Wayne was married to Beverley Brown for over 40 years, a second marriage for both. Beverly passed in February 2019. Wayne passed on May 10, 2021.
13The Applicants are Shannon Brown, Roger Orde, and Steve Orde.
14Shannon is Wayne’s son.
15Roger and Steve are Wayne’s stepsons.
16The Respondents are Christine Foster, Gail Brown, Michael McCrea, Estate Trustee for the Estate of Kerrie McCrea, Billie Brown, and the Canadian Diabetes Association.
17Christine is Wayne’s niece.
18Gail is Wayne’s sister.
19Michael is the husband of Kerrie McCrea, deceased. Kerrie was Wayne’s stepdaughter.
20Billie is Wayne’s son.
21Neither Billie nor the Canadian Diabetes Association took a position in the proceeding, nor are they seeking costs.
Testamentary Instruments
22Beverley drafted a will in 2007, leaving everything to Wayne. If Wayne predeceased her, the residue of Beverley’s estate, after bequests to the grandchildren, would be divided equally between Billie, Steve, Roger, and Kerrie. Shannon received nothing.
23There is no evidence Wayne drafted a will in 2007 mirroring Beverley’s.
24On November 5, 2019, Wayne executed a will (the “2019 Will”), the relevant portions being:
a. Steve and Roger were named estate trustees;
b. Christine was bequeathed a life estate in Wayne’s home;
c. Christine was bequeathed Wayne’s dog;
d. Christine received 25% of the residue;
e. Steve, Roger, and Gail each received 25% of the residue; and
f. Shannon, Billie, and Kerrie received nothing.
25James Jordan was the drafting solicitor.
26On January 24, 2020, Wayne executed the 2020 Will, the relevant portions being:
a. Christine and Shannon were named estate trustees, Billie as an alternate;
b. Christine received 30% of the residue;
c. Gail received 30% of the residue;
d. Kerrie received 25% of the residue; and
e. The Canadian Diabetes Association received 15% of the residue.
27Gary Ainsworth was the drafting solicitor.
28The Applicants speculated that Wayne drafted a will in May 2019. I found there was no evidence of such a will.
Positions of the Parties
Respondents
29Christine seeks substantial indemnity costs in the amount of $112,000 for the entirety of the litigation. In the alternative, she seeks costs on a partial indemnity basis to the date of the MET motion and on a substantial indemnity basis thereafter. In the further alternative, Christine seeks costs on a partial indemnity basis for the entirely of the litigation in the amount of $84,491.32. All costs payable by the Applicants.
30Gail seeks substantial indemnity costs in the amount of $16,213.24, or partial indemnity costs of $12,159.93, payable by the Applicants or, in the alternative, the Estate.
31On behalf of Kerrie’s estate, Michael seeks full indemnity costs in the amount of $36,960, or partial indemnity costs of $28,869.20, payable by the Estate.
Applicants
32The Applicants submit that while the will challenge was not decided on its merits, the application was necessary because it arose from suspicious circumstances deserving of the court’s scrutiny.
33The Applicants further submit that they be shielded from any cost penalties as they abandoned their claim at the earliest possible juncture following my Endorsement, saving the Respondents time and costs.
34Finally, the Applicants seek their costs up to the point of abandonment, payable by the Estate.
35The Applicants concede that Christine is entitled to costs incurred defending the Application but maintain that these costs should be reduced and paid by the Estate.
36Gail and Kerrie’s estate should not be awarded costs as they were passive respondents. If they are entitled to costs, these should be borne by the Estate as well.
Jurisprudence
37There was once a presumption that all the parties in estate litigation will be paid costs out of the estate funds. This presumption has been displaced.
38As explained in McGrath v. Joy, 2022 ONCA 119, 471 D.L.R. (4th) 211, at paras. 91-95, citing McDougald Estate v. Gooderham (2005), 2005 CanLII 21091 (ON CA), 255 D.L.R. (4th) 435 (Ont. CA), at paras. 78-79, the former presumptive approach of paying costs out of the estate was based on two policy considerations: a) the need to give effect to valid wills that reflect the intention of competent testators and b) the need to ensure that estates are properly administered.
39Where there are reasonable grounds to question the validity of a will, there is a public interest in determining those issues without burdening the parties with costs. Further, where litigation arises from the actions of the testator, it can be appropriate for the estate to bear the costs.
40However, courts must stand on guard to prevent litigation from depleting an estate, which is prejudicial to the ultimate beneficiaries.
41In essence then, where public policy considerations are engaged, the losing party’s costs should be payable from the estate. If there are no public policy considerations, the challenger should bear their own legal costs.
Discussion
42For the following reasons, I find there were no public policy considerations engaged in the case at bar.
a. Wayne’s actions did not cause the litigation.
b. The will challenge was not reasonable. The Applicants submit that Wayne’s drafting of two wills less than three months apart was a suspicious circumstance. I disagree. The actions of Roger and Steve were suspicious as after their mother died, taking Wayne to their family lawyer to draft the 2019 Will and powers of attorney. They insisted that the powers of attorney be released quickly so they could begin acting on them. Furthermore, they pressured Wayne into moving into a nursing home. By drafting the 2020 Will with Mr. Ainsworth, a lawyer Wayne found in the phone book, Wayne was righting what he perceived to be a wrong perpetrated on him by Roger and Steve.
c. There was nothing to ground the Applicants’ allegation of undue influence. Unlike Roger and Steve taking Wayne to their lawyer two months earlier, Christine did not take Wayne to Mr. Ainsworth. Christine had never met Mr. Ainsworth. More importantly, if Christine was truly the manipulator the Applicants claim, why would she only receive a portion of the Estate and not everything?
d. The contemporaneous medical records do not support any form of incapacity. Dr. Veselskiy’s records confirm that Wayne did not suffer from dementia but rather age- and grief- appropriate symptoms.
e. The Application was wholly unnecessary to ensure the proper administration of the Estate.
43As I described in my Endorsement, the changes Wayne effected in his 2020 Will reflected his dissatisfaction with his children and stepchildren, not undue influence or incapacity.
44This matter falls squarely within the category of cases where modest estates are wasted on unmeritorious litigation alleging incapacity and undue influence, and the losing applicant is ordered to pay costs. For example:
a. Fanelli v. Fanelli-Bruno, 2023 ONSC 6501 where the applicant was ordered to pay substantial indemnity costs.
b. Issa v. Aiello, 2025 ONSC 5173, where the applicant was ordered to pay substantial indemnity costs.
c. Cissek v. Laszlo, 2026 ONSC 1493, where the applicant was ordered to pay partial indemnity costs because she adduced some evidence of suspicious circumstances, although they were answered by the respondent.
45Roger and Steve, and Shannon by association, would have the court uphold the 2019 Will in which Roger and Steve, along with Christine and Gail, were each bequeathed a 25% share in the Estate. The Applicants have spent over five years litigating their exclusion from Wayne’s 2020 Will, drafted less than three months later. Christine and her conduct were their only target despite Christine’s interest in the Estate increasing by a mere 5% between the execution of the two wills.
46The Applicants seek to recover their costs up to the date they abandoned their claim, relying on Morley et al. v. Morley et al., 2013 ONSC 1595 (“Morley”).
47In Morley, the applicant’s parents had cut her out of their life completely. The applicant, believing her parents were being manipulated by her sister, brought an application seeking inter alia, an order that her parents undergo a capacity assessment, and production of their medical files. The applicant abandoned the application once she learned her mother was incapable and upon receipt of a letter from her mother’s treating psychologist who confirmed the mother’s wish to cut off her daughter.1
48Master Roger exercised his discretion to depart from the ordinary rule that the respondent is entitled to costs where an applicant abandons an action. He found the application was justified because:
The applicant had exhausted all other measures and was concerned her parents were being manipulated.
This was a family situation where one sister was close to the parents, and the other was completely excluded from any contact.
The sisters’ relationship was poor.
The applicant had no other options to obtain independent verification of her parents’ wishes,
49Ultimately, the applicant was allowed to abandon the application on a without costs basis.
50Morley is distinguishable on one significant ground – the daughter’s application was not found to be either frivolous or vexatious.
51That is not the case here. There was no evidence to justify this Application. While the Applicants grounded their arguments in allegations of undue influence and incapacity, in reality they were disgruntled beneficiaries who believed they were entitled to a portion of the Estate. They were prepared to take whatever steps were necessary to attain their goal including, as Roger phrased it, “fighting Christine back to the hole from which she came.” This is highly frivolous and vexatious.
52Ultimately, the costs of a proceeding is an exercise of the court’s discretion: s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43.
53In exercising my discretion, I am to consider the relevant factors set out in r. 57.01(1) of the Rules, including the principle of indemnity, the amount of costs the unsuccessful party could reasonably expect to pay, the complexity of the proceeding, and the importance of the issues.
54The fact of the matter is that it is difficult to imagine a more ill-conceived will challenge. The Applicants’ unsubstantiated allegations have prolonged the administration of Wayne’s modest Estate. It would offend the principles of justice to allow their actions to deplete it any further.
55Not only are the Applicants disentitled to an award of costs, but they are also jointly and severally responsible for paying Christine’s costs on a substantial indemnity basis in the amount of $80,000 plus disbursements. Christine bore the brunt of the litigation, absorbing all of the risk of preserving not only her interest in the Estate, but Gail’s and Kerrie’s as well.
56I appreciate that Christine’s substantial indemnity costs are actually $112,000 but with an estate of such modest means, this account is simply too high. The same can be said for the Applicants’ costs of $121,576.62, which are exorbitant given an estate valued at just over half a million dollars. Both sets of fees are disproportionate to what was at stake in this straightforward litigation comprised of just one asset.
57I do not find favour with the Applicants’ submission that a portion of Christine’s fees were taken to benefit the Estate – for example, the preservation order and the order liquidating the assets. Without litigation, these orders would not have been required.
58Gail shall bear her own costs. While she was a participant by necessity, no allegations of wrongdoing were levelled against her, and she had nothing to answer to. The choice to retain counsel was a personal one that the Estate should not be responsible for.
59For these same reasons, Kerrie’s estate shall also bear its own costs with the following observation. If I had ordered that the Estate bear some of Gail’s costs, I would not have made the same order in respect of Kerrie’s estate. Before she passed, Kerrie fully supported the Applicants’ position, advising Roger that she and Michael were “fully on board” with the will challenge.
Conclusion
60In the circumstances of this particular case, I award Christine costs of $80,000, plus disbursements, prima facie payable by the Applicants.
61The remaining parties shall bear their own costs.
62In closing, I note that some parties raised different time periods in the litigation, using either the METS motion or the cross-examination of Mr. Ainsworth, as a natural point at which the litigation could have been abandoned and legal costs stemmed, and tailored their submissions accordingly.
63I did not take these periods into account when determining costs for the same reason that grounded my determination on the METS motion – the will challenge was entirely meritless ab initio, with no public policy considerations warranting judicial scrutiny.
CASULLO J.
Released: July 13, 2026