Jan 9, 2019
Ms. Sweetnam, Respondent, is the testator’s daughter. She challenged two of her father’s wills which had been made within less than two months of his being diagnosed with brain cancer and in which she had been disinherited. In her view, her father did not have testamentary capacity when he executed the wills. The Applicants are the estate trustees who defended the action. The trial judge agreed the father did not have testamentary capacity at the relevant time and he invalidated the wills. As a result, the estate is to pass as an intestacy and the daughter is to receive the entire estate which is worth approximately $7.5M. Following the trial decision, the judge issued a costs endorsement in which he held the estate trustees personally liable for costs in the amount of $311,679.56. In his view, it was unfair and inequitable to allow the trustees to recover their costs from the estate when the daughter was entirely successful. He also found the trustees had acted unreasonably by failing to accept either of the offers to settle made by the daughter. With respect to one of the trustees in particular, the judge found the litigation had been conducted in a very adversarial manner, and costs claimed were grossly excessive and almost double those claimed by the daughter. In the trial judge’s view, that trustee was “perfectly entitled to conduct the litigation in such a fashion, but where she does so and loses, she should not be surprised to be treated like an ordinary litigant who loses.” The C.A. dismissed the appeal and the motion for leave to appeal the costs award. 'The application for leave to appeal...is dismissed with costs.'