All About Estates

An Award of Full Indemnity Costs is Not a Fantasy

In a recent cost decision in the Penney Estate, the estate trustee during litigation (“ETDL”) and The Children’s Lawyer (“OCL”) were awarded their full indemnity costs on a motion for leave to appeal.

Ms. Resetar, the former estate trustee, sought leave to appeal the April 9, 2010 Order of Justice Ricchetti. Justice Ricchetti’s Order provided that Ms. Resetar post a bond with the Accountant for the Superior Court of Justice or attend at an examination regarding her personal finances, pending the hearing of the application to pass accounts.  Ms. Resetar sought leave to appeal the Order. The motion for leave to appeal was dismissed by Justice Kruzick.  The successful parties, the ETDL and the OCL, sought their costs for the leave motion.

Justice Kruzick awarded full indemnity costs to the ETDL and the OCL. He found that they had no alternative but to respond to the leave motion and that their costs were fair and reasonable in the circumstances. He noted that the bills of costs submitted by the ETDL and the OCL reflected a reduced hourly rate, which was a factor he took into consideration. 

Applying the principles of McDougald Estate, Justice Kruzick found that the two limited exceptions to the “loser-pay principle” did not apply and that Ms. Resetar should pay the successful parties’ costs.  Justice Kruzick noted that if estate trustees or estate trustees during litigation are expected to bear their own litigation costs, they would refuse to be appointed and “would also be reluctant to bring proceedings to advance the due administration of the estate and protect the interest of the beneficiaries.”

Much has been written on costs in the estate litigation context lately and all counsel are best advised to review the latest cost decisions to keep apprised of any new developments.

Thanks for reading,

Diane Vieira

About Diane Vieira
Diane has practiced in the area of estate, trust and capacity litigation since she was called to the Ontario Bar in 2006. Diane obtained her law degree from Queen’s University after completing an Honours Bachelor of Arts degree from the University of Toronto. She also recently received the Certificate in Elder Law from Osgoode Hall Law School. She is a member of the Trusts & Estates Section of the Ontario Bar Association, the Advocates’ Society, and the Toronto Lawyers Association. Diane has chaired various continuing legal education programs regarding estate, trust and capacity matters. She can be reached at dvieira@devrieslitigation.com