Challenger Ordered to Pay Costs After He Advanced a Weak Position

In Eisenrieder Estate v. Eisenrieder, 2020 ABQB 392 the Honourable Justice N.E. Devlin considered a costs award for a challenge to a will. By way of background, the Estate brought an application for advice and direction on the correct interpretation of a will. The plaintiff had advanced a position that did not align with the intentions of the testator, and thus had a low chance of success.

The Court summarized some of the relevant principles on the issue of costs.

Costs are highly discretionary.

The Courts authority to order costs on estate matters arises from rule 64(1) (h) of the Surrogate Rules which state the following:

Procedure at hearing

64(1) The court, on hearing an application, may
(h) order costs to be paid from the estate or by any person who is a party to the application;

The Honourable Justice N.E. Devlin at paragraph 22 summarized the law for determining whether costs should be paid by the unsuccessful party or the estate, which involves the following considerations:

• Did the testator cause the litigation?
• Was the challenge reasonable?
• Was the conduct of the parties reasonable?
• Was there an allegation of undue influence?
• Were there different issues or periods of time in which costs should differ?
• Were there offers to settle?

On the issue of whether the challenger’s position was reasonable, Justice Devlin found the argument advanced was weak.

Justice Devlin at paragraph 43 then considered the conduct of the parties and found that the conduct of the challenger was unreasonable. He “did not give clear timely instructions… [which] resulted in a significant waste of time and money.”

Lastly, Justice Devlin considered the fees expended in light of the complexity of the issue and found that the grand-daughters bill of $29,000 to be reasonable, and the estates bill of $11,500 also to be reasonable.

In result, the estate was entitled to just over 2.5 times the Column amount, and the granddaughters were entitled to “just over double the amount payable to the estate” both of which were payable by the challenger of the will.

This case demonstrates that where a party advances a weak position, the opposing parties may be entitled to an enhanced costs award. If you have any questions on the issue of costs, contact one of the estate lawyers at Kantor LLP, we are happy to answer any questions.

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