Often when an estate is involved in litigation to address the conduct of an uncooperative beneficiary, the other beneficiaries expect that the estate trustee’s court costs will be paid from the share of the “problem” beneficiary.  However, as lawyers like to say “it depends.”

In a recent Ontario case, an estate trustee brought a court application seeking immediate access and the vacant possession of the Deceased’s house, the primary asset of the estate.  The Respondent was the Deceased’s son, Derek, who was the residuary beneficiary of the Estate along with his half brother.

Derek, resided in the house with his mother prior to her admission to long term care facility and after her admission continued to reside in the house. During that time, he did not pay rent or other property costs. Derek had brought a dependant support application against his mother’s estate and was seeking a delay of the date he would vacate the house.

The Deceased was the solo owner of the house and the estate continued to incur the expenses related to the house. The estate trustee did not have access to the house and the administration of the estate was delayed. The Deceased’s Will provided for the house to be sold and the proceeds shared equally between Derek and his brother.

The court agreed that the house vested in the estate trustee upon the Deceased’s death and she had the authority to attend at the property and sell it. However, the court declined to order immediate vacant possession of the property and agreed that Derek could continue to live at the property with certain conditions in place for both the estate and Derek. Derek was ordered to vacate the property 7 days before the closing date.

With respect to costs, the estate trustee sought that their costs be paid from Derek’s share of the estate.  Citing the mixed success of the parties, the court declined to order the estate trustee’s costs be paid solely from Derek’s share and her costs were paid from the estate. The Respondent was responsible for his own costs.

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