Party was liable for costs of litigation caused by his actions

Estates and Trusts – Estates – Will challenges

Testator and husband had four children, R, T, S, and C. R’s wife arranged for lawyer to prepare will and power of attorney (POA) for testator, and testator executed them during first meeting with lawyer in hospital in December 2015. R was named as estate trustee, sole beneficiary, and sole attorney, and he transferred testator’s property to himself several days before testator died in January 2016. T brought successful application for declaration that will and POA were invalid and for order setting aside transfer of testator’s property to R. Testator’s estate distributed upon intestacy to four children. It was found that T was entitled to his costs from R personally and not from estate, and parties made written submissions on costs. Given evidence, it could have come to no surprise to R that court could conclude that suspicious circumstances existed concerning making of will and that due execution of will and POA would be insufficient, on their own, to discharge burden on R as propounder of will and POA. R was liable for costs of litigation caused by his actions. Fees of $60,000 claimed by T were found to be appropriate and reasonable. In applying modern costs principles, no basis could be found to order that R should pay more than partial indemnity costs. Total costs award against R were fixed at $54,292.15. It was fair and reasonable portion of T’s costs to be paid from estate so in addition to costs payable by R to T, T was awarded costs in further amount of $23,730 to be paid from estate.

Graham v. Graham (2020), 2020 CarswellOnt 1249, 2020 ONSC 784, L. Sheard J. (Ont. S.C.J.); additional reasons (2019), 2019 CarswellOnt 9418, 2019 ONSC 3632, L. Sheard J. (Ont. S.C.J.).

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