4.29: Costs consequences of formal offer to settle
10.29: General rule for payment of litigation costs

Case Summary

This was an Application for Costs following the Trial of a matter where the Defendant was ultimately successful in defending the validity of a Will. The Defendant was seeking Costs against the Plaintiff, whereas the Plaintiff was seeking their Costs to be paid out of the Estate on a Party-Party basis. In determining whether or not the Costs would be paid out of the Estate, Verville J. relied on the test outlined in Babchuk, Petrowski v Petrowski Estate, 2009 ABQB 753, and found that the Plaintiffs acted reasonably in challenging the Will. Further, the amount of the Plaintiffs’ Costs would not significantly deplete the assets of the Estate.

The Court also found that there were numerous Formal Offers to Settle made by both the Plaintiffs and Defendant, including a Formal Offer by the Defendants that was better than the result obtained by the Plaintiffs. However, Verville J. concluded that, because of the “factual matrix of this case and the somewhat unusual circumstances”, the failure of the Plaintiffs to beat a settlement offer was not a factor that weighed significantly against them. The Plaintiffs were awarded their Costs on a Party-Party basis from the Estate, and the Defendant’s Application for Costs was dismissed.

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