10.31: Court-ordered costs award
10.33: Court considerations in making costs award

Case Summary

This was a Costs Decision arising from the Court’s previous dismissal of the Applicants’ Application to set aside a grant of probate and for a direction of Trial to determine the issues of testamentary capacity of undue influence over the deceased by the Respondents.

The Court noted its wide discretion pursuant to Rules 10.31 and 10.33, as well as the Surrogate Rules, with respect to any Costs Award. The Court observed that Rule 10.31(1) extends the Court’s discretion to “any amount that the Court considers to be appropriate in the circumstances, including… [under Rule 10.31(1)(b)(i)] an indemnity to a party for that party’s lawyer’s charges”.

Referring to Schwartz Estate v Kwinter, 2013 ABQB 147, the Court noted that, with respect to estate matters, the Surrogate Rules modify the Rules of Court, supplementing the ordinary Costs principle by penalizing any person who required formal proof of the will if it became clear that the “Application was frivolous or vexatious” or if “the person had no substantial basis for requiring the scrutiny of the Court”. The Court found that the Applicants’ conduct did not approach the level of animosity, arbitrariness or obstructionism required to attract enhanced Costs. However, relying on Stewart v McLean, 2003 ABQB 205, 49 ETR (2d) 294, the Court noted an Application may attract an Order for enhanced Costs when there are clear allegations that put the issue of a Party’s honesty before the Court. The Court held that the allegations of undue influence fell within this category. Because the allegations of undue influence were not successful, the Court concluded that it would be appropriate to award some measure of enhanced Costs.

For the reasons above, the Court found the Respondents were entitled to enhanced Costs for the failure to establish a triable issue relating to undue influence, calculated at 2.5 times for half of their fees, in addition to disbursements as set out in their Bill of Costs, and GST.

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