10.28: Definition of “party”
10.29: General rule for payment of litigation costs
10.30: When costs award may be made
10.31: Court-ordered costs award
10.33: Court considerations in making costs award

Case Summary

The Court considered the appropriate costs award after the Applicants experienced mixed success in an estate dispute. The Applicants applied to validate the deceased’s will and remove the Respondent as Personal Representative of the deceased’s estate. The Court validated the will but declined to remove the Respondent as Personal Representative.

Rules 10.28-10.33 govern costs awards. The Court noted that the primary purpose of costs is to offset the fiscal impact of a person being forced to appear in Court without a valid legal reason and that costs should be fair, just, efficient, and cost-effective. The Court reviewed the factors in Rule 10.33 for making a costs award.

The Court first determined that the Respondent was entitled to full indemnification from the estate for challenging the validity of the will. The Court reviewed the factors set out in Babchuk that Courts consider in determining whether Costs should be awarded to the unsuccessful party in estate litigation. The Court was satisfied that the Application regarding the validity of the will needed to be heard and fully argued whether brought by the Respondent or the Applicants.

The Court then determined that the Applicants were entitled to costs from the Respondent personally. The Court expressed concern that the Respondent failed to disclose the existence of the will and then determined that the Respondent’s conduct did not warrant an Order for solicitor/client Costs against the Respondent personally but did award the Applicants Costs pursuant to Schedule C against the Respondent personally.

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