Land v. Binkley Estate [2009] O.J. No. 5876 (S.C.J.) has become somewhat notorious among the estates bar, but is nevertheless instructive on several fronts as to the perils of litigating. 

The application brought by the estate trustee to rectify a typographical error in the will was granted.  The rectification resulted in a reduction in the amount left to each of the respondent beneficiaries (“Respondents”) from $25,000 to $2,500.  In terms of costs, the court ordered that the Respondents pay the costs of the successful estate trustee personally.  

There was no appeal from the rectification decision on the merits.  However, the Respondents sought leave to appeal the costs award.  In dismissing the Respondents’ leave to appeal, Justice Glithero noted that the court was given wide discretion/latitude in awarding costs and that it was an error to divorce the reasons on a cost ruling from the reasons given on the application itself.  Simply put, finding of facts in the main application were relevant to the issue of costs.

In addition, Justice Glithero stated that the usual “loser pay” principle in civil litigation applied with equal measure to estate litigation, but for the important exception where the litigation arose as result of the testator’s mistakes or omissions.

In the case before him, Justice Glithero had little sympathy for the Respondents.  According to Justice Glithero, the rectification application neither brought into question the deceased’s capacity to make a will nor the execution of the will.  Moreover, where the deceased’s capacity to make a will or execute his/her will was challenged, there must be reasonable grounds upon which to make such a claim.  According to Justice Glithero, the application judge found that the evidence favouring rectification was strong.  In fact, there was no evidence to the contrary.  The Respondents did not have reasonable grounds to oppose the rectification application and should be saddled with costs.  Justice Glithero also expressed his concern that in today’s world where high legal fees are often the norm, the Respondents proceeded to court not once, but twice (the leave application); to fight over what was a relatively modest sum of money.  Justice Glithero was not impressed. 

 Happy Reading,

Justin de Vries