I previously wrote about Werbenuk v. Werbenuk in an earlier blog. This B.C. wills variation application was noteworthy for allegedly “re-writing” the testator’s will in order to provide for his daughters, whom he had disinherited. (The case was also noteworthy in the media for its depiction of an abusive, racist, and misogynist testator.) As you may recall, the testator’s will had only provided for his son, Randall, to the exclusion of the testator’s four daughters. This was rectified on the will variation application through what amounted to a roughly equal division of the testator’s estate.
Justice Wong, who heard the will variation application, recently issued a costs decision. The daughters submitted that they should be entitled to costs against Randall on the grounds that he chose to proceed to trial under circumstances where it would have been reasonable for him to have settled the application without trial. Randall on the other hand submitted that the costs of all parties should be paid out of the estate. He argued that the will variation issue only arose because of his father’s conduct in making the provisions he chose to make under his will and that an award of costs against him, personally, would be punitive.
Justice Wong disagreed, and held that costs should be awarded against Randall. In so doing, he indicated that in cases where the cause of the litigation “originated from the conduct or errors of the testator (i.e., unclear wording or validity of the will)”, then the costs of all parties will usually be paid from the estate. However, “[i]n an action under dependent relief legislation (i.e., where the proceedings are adversarial in nature and are not brought about by the actions of the testator), costs follow the event.” As such, Justice Wong found that Randall, in opposing the daughters’ application for a variation to their father’s will, “allowed his personal interest to take precedence over legitimate and reasonable claims of his sisters.” Justice Wong also noted that he had refused what he considered to be a reasonable offer of settlement by his sisters before trial. Consequently, Justice Wong ordered costs against Randall, payable by him and as a first charge against his portion of the estate. Neither quantum of the costs incurred nor the costs sought were specified.
Justice Wong’s reasoning makes short work of disposing of Randall’s argument without fully articulating why it is the case that Randall’s opposition to the application resulted in costs against him, beyond the fact that the jurisprudence says the “loser pays” principle applies. But what, at the end of the day, is the difference between a will challenge case and a dependant support claim when it comes to determining the party’s liability for costs? Is there something to Randall’s argument that the estate should be liable for costs as the cause of the litigation arose because of his father’s error in failing to include his daughters in his will?
Thanks for reading,