Theodore D. Dueck

Following the dismissal of the plaintiff's motion for summary judgment regarding a disputed legacy in her late father's will, the court determined the issue of costs.

The court rejected the plaintiff's argument that the traditional estate costs rules should apply, finding that the litigation was caused by the drafting solicitor's error, not the testator's actions.

Applying normal civil costs rules, the court ordered the plaintiff to bear her own costs due to her tactical conduct, ordered the drafting solicitor to bear his own costs because his error caused the litigation, and ordered the plaintiff to pay the partial indemnity costs of the estate and foundation.

The plaintiff sought summary judgment for an $800,000 legacy from her late father's secondary will, arguing for a literal interpretation or that a later clause should prevail.

The defendants argued a drafting error, contending the legacy was conditional on the plaintiff not receiving property under the primary will, which did not occur.

The court applied the "armchair rule" and the Lipson principles for correcting drafting errors, finding an obvious error in the will.

The court dismissed the plaintiff's motion for summary judgment and ordered the will to be amended to reflect the testator's true intention that the legacy was conditional on the property transfer not occurring.