In what the judge referred to as a “noble gesture”, the deceased ordered that his two scrapbooks setting out his life story be copied and distributed to his family. These instructions were set out in a Codicil to his Will.
However, disagreement amongst family members regarding the copying of the scrapbooks and delivery of the books led to court proceedings and over $30,000 in legal fees claimed by the three parties. It also resulted in a rare award of costs personally against the estate trustee.
In Booy-Bos v. Farruggia, the applicant was entitled to receive a copy of the deceased’s scrapbooks. The estate trustee had given the task of copying the scrapbooks to the respondent. The respondent was slow to copy the scrapbooks and wanted to only provide redacted versions of the document. The respondent argued that the estate trustee did not provide clear directions about the scrapbooks.
The Court found that the applicant was right to pursue her claim for the scrapbooks. She was entitled to the scrapbooks pursuant to the Codicil. The estate trustee was faulted for failing to deliver the scrapbooks and allowing the issue to spiral out of control. Further, the estate trustee attempted to tie the delivery of the scrapbooks with resolving another estate issue with the applicant. The applicant would only receive the scrapbooks when an agreement regarding the house was reached. This quid pro quo stance taken by the estate trustee would be a mitigating factor when awarding costs.
The applicant was awarded her costs. She received partial indemnity costs from the Estate and the remaining costs were ordered to be paid personally by the estate trustee. The respondent also received a portion of her partial indemnity costs payable by the estate. The estate trustee was ordered to bear her own costs.
A personal cost award against an estate trustee sends a strong message. The case exemplifies how sometimes a small issue can grow into a large, expensive dispute. It also illustrates the high standards fiduciaries are held to.
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