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PAPER 7.1
Probate Actions
These materials were prepared by M. Scott Kerwin of Borden Ladner Gervais LLP, Vancouver, BC, for the
Continuing Legal Education Society of British Columbia, October 2010.
M. Scott Kerwin
7.1.1
PROBATE ACTIONS
I. Introduction .......................................................................................................................................................2
II. General Principles .............................................................................................................................................3
A. Meaning and Purpose of Probate............................................................................................................................................ 3
B. Proof in Solemn Form................................................................................................................................................................ 3
III. Challenges to Wills ............................................................................................................................................4
A. Burden of Proof and the Doctrine of Suspicious Circumstances....................................................................... 4
B. Non-Compliance with Formalities ......................................................................................................................................... 6
C. Testamentary Capacity................................................................................................................................................................. 7
1. Meaning of Testamentary Capacity ....................................................................................................................... 7
2. Other Considerations......................................................................................................................................................... 8
a. Testamentary Capacity is a Question of Fact............................................................................................ 8
b. Not a Stringent Standard ................................................................................................................................. 8
c. Declaration of Incapacity Not a Bar ............................................................................................................... 9
d. Testator Entitled to Be Capricious and Unfair.......................................................................................... 9
e. Testamentary Capacity is a Legal Question, Not a Medical Question ........................................ 9
3. Summary ................................................................................................................................................................................ 10
D. Knowledge and Approval......................................................................................................................................................... 10
1. General Principles.............................................................................................................................................................. 10
2. Relevant Factors................................................................................................................................................................. 11
3. Overlap with Rectification Issues.............................................................................................................................. 12
4. Leading Cases....................................................................................................................................................................... 12
a. Russell v. Fraser........................................................................................................................................................ 12
b. Lowery v. Falconer (2008) ................................................................................................................................. 12
c. Franks v. Sinclair ..................................................................................................................................................... 13
5. Summary ................................................................................................................................................................................ 13
E. Undue Influence ............................................................................................................................................................................ 13
1. General Principles.............................................................................................................................................................. 13
2. Relevant Factors................................................................................................................................................................. 14
3. Different Forms of Coercion........................................................................................................................................ 15
4. Presumption of Undue Influence ............................................................................................................................. 15
IV. Procedural Steps and the Rules of Court ....................................................................................................16
A. The Supreme Court Civil Rules.............................................................................................................................................. 16
1. Caveats and Citations ..................................................................................................................................................... 16
2. Commencing a Probate Action................................................................................................................................. 16
3. Steps in a Probate Action.............................................................................................................................................. 17
B. Impact of the New Civil Rules ................................................................................................................................................ 18
C. The Draft Probate Rules ............................................................................................................................................................ 18
V. Costs in Probate Actions................................................................................................................................19
A. General Principles ......................................................................................................................................................................... 19
B. Costs in Probate Actions........................................................................................................................................................... 20
1. Popular Misconceptions of the Rule....................................................................................................................... 20
2. Policy Considerations...................................................................................................................................................... 20
7.1.2
3. The Rule in Mitchell v. Gard........................................................................................................................................ 21
4. Application of the Rule .................................................................................................................................................. 22
a. The Testator is the Cause.............................................................................................................................. 22
b. Parties Forced Into Litigation...................................................................................................................... 22
c. Undue Influence Claims..................................................................................................................................... 23
C. Tailoring the Proper Costs Award ....................................................................................................................................... 23
1. What Issues Were Raised in the Litigation?......................................................................................................... 23
2. What Was the Result?..................................................................................................................................................... 24
3. Conduct of the Parties.................................................................................................................................................... 24
4. Settlement Offers .............................................................................................................................................................. 24
5. What Scale of Costs?........................................................................................................................................................ 24
6. Should There be Different Costs Awards for Different Phases/Issues? ................................................ 24
7. Source of the Costs Award........................................................................................................................................... 25
8. What Party? .......................................................................................................................................................................... 25
D. Summary............................................................................................................................................................................................ 26
VI. Appendix AProposed Amendments to Supreme Court Civil Rules...................................................27
A. Supreme Court Civil Rules, BC Reg. 168/2009............................................................................................................... 27
1. Rule 21-4................................................................................................................................................................................. 27
2. Rule 21-5................................................................................................................................................................................. 28
B. Draft Rule 21-4 (BCLI Report) ................................................................................................................................................ 28
C. Wills, Estates and Succession Act, S.B.C. 2009, c. 13 ................................................................................................... 29
I. Introduction
A probate action, or action for proof in solemn form, is the quintessential form of estate litigation. The central
issue in these actions relates to determining the true testamentary wishes of the deceased. There are intricate
legal principles to understand and, quite often, a complicated set of facts to uncover. This paper can only deal
with the subject in a general way. There are many sources on this subject that may be consulted, such as
various CLE papers.1 In terms of textbooks, the key source in BC is the Probate and Estate Administration
Practice Manual published by CLE. Other Canadian textbooks, such as Feeneys Canadian Law of Wills and
Macdonnell Sheard & Hull on Probate Practice, are quite helpful although not specific to the law and practice in
BC. English texts such as Williams on Wills, Williams, Mortimer and Sunnucks on Executors, Administrators and
Probate and Tristram and Cootes Probate Practice are excellent sources for the basic principles.
This paper will be divided into three parts. The first section concerns the substantive law in probate actions,
and reviews the four main challenges to the validity of wills. Next, I will provide a review of the procedural
aspects of a probate action with reference to the new Supreme Court Civil Rules, BC Reg. 168/2009. Finally, the
important issue of costs will be addressed. Throughout, I will make reference to expected changes to the law
and practice that will come about as a result of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (WESA),
and will also refer to the draft Probate Rules recently published by the BC Law Institute.
1 Amy D. Francis, Probate Actions (CLE, November 2008); Rhys Davies, Proof in Solemn Form (CLE,
June 1992); Sandra K. Ballance, Caveats, Pre-Grant Citations and Subpoenas (CLE, June 1992); Janine
A.S. Thomas, The Problem Will (PBLI, 1998).
7.1.3
II. General Principles
2 Romans Estate v. Tassone (2009), 47 E.T.R. (3d) 286, 2009 BCSC 194 at para. 30.
3 An executor who commences an action on behalf of the estate will also need a grant of probate before the court
can grant judgment: Romans Estate v. Tassone, 2009 BCCA 421, citing Chetdy v. Chetdy, [1916] 1 A.C. 603.
7.1.4
Often proof of a will in common form is all that is required for the administration of an
estate where there is a will. Proof in common form, however, does not conclusively
determine the will to be the valid last will of a person.
Proof of the will in solemn form provides some protection for the will, in that it will not
later be set aside, unless obtained by fraud or a later will is found: Tristam & Cootes Probate
Practice (27th Edition, 1989, p. 572). As noted by the authors of the British Columbia
Probate & Estate Administration Manual, 2nd Edition, 2008 Update, at 18-17, [t]he
safeguarding effect of a grant in solemn form is an application of the principle of res judicata
to what is a judgment in rem.
This decision was affirmed by the BC Court of Appeal: (2009), 51 E.T.R. (3d) 1, 2009 BCCA 421.
Section 56 of the Estate Administration Act, R.S.B.C. 1996, c. 122 provides that a will proved in solemn form is
conclusive evidence of its validity and contents, other than in proceedings on appeal from, or to revoke, the
grant of administration. A similar provision is not found in the WESA.4
4 See the commentary at 18.19 of the chapter Probate Actions by Roger Lee and Rhys Davies, QC in the
CLE practice manual.
5 Vout v. Hay, [1995] 2 S.C.R. 876 at para. 25; Maliwat v. Gagne, 2009 BCSC 1447 at para. 106.
6 Riach v. Ferris, [1934] S.C.R. 725; Vout v. Hay, [1995] 2 S.C.R. 876 at para. 25.
7.1.5
the requisite formalities, after having been read over to or by a testator who appeared to
understand it, it will generally be presumed that the testator knew and approved of the
contents and had the necessary testamentary capacity.7
In this respect, it should also be noted that there is a presumption of due execution that aids the propounder
of the will. The court proceeds on the (rebuttable) presumption that the will was properly executed if it
appears to have been properly executed when it is presented to the court.8
The rebuttable presumption simply casts an evidential burden on those attacking the will.9 The evidential
burden can be satisfied by introducing evidence of suspicious circumstances.
The term suspicious circumstances was described in Vout v. Hay as meaning evidence which, if accepted,
would tend to negative knowledge and approval or testamentary capacity. Mr. Justice Cullity in Scott v.
Cousins held that the evidence needed to excite the suspicion of the Court, and rebut the presumption of
validity, is akin to raising a triable issue in a summary judgment motion.10 The Supreme Court of Canada in
Vout v. Hay set out three general types of suspicious circumstances: (1) suspicious circumstances raised by
events surrounding the preparation of the will; (2) events tending to call into question the capacity of the
testator; and (3) coercion or fraud.11
Despite such guidance, it is often difficult to predict whether a court will find circumstances to be sufficiently
suspicious to rebut the presumption. The courts have stated that it is not sufficient that the circumstances
create a general miasma of suspicionthere must be a specific and focussed suspicion.12 Certainly, if the
primary beneficiary of the will had either prepared the will, or was intimately involved in its preparation, it
raises a cloud of suspicion which must be removed before the will can be probated.13
The effect of establishing that there are suspicious circumstances is that the legal burden of proof reverts to
the propounder. The presumption of testamentary capacity is spent and the propounder of the will must
affirmatively prove on a balance of probabilities that the testator had testamentary capacity to make a will and
knew and approved of the contents of the will.14
Evidence about suspicious circumstances can therefore be critical to the success or failure of a litigants case.
If a challenger cannot satisfy this initial step that there are any circumstances which should excite the
suspicion of the court, the claim is doomed to fail.15 Furthermore, the weight of any suspicion will have a great
bearing on the outcome of the case. The Supreme Court of Canada has held that, although the standard of
proof remains the civil standard of the balance of probabilities, the
7 See also Ravnyshyn v. Drys (2005), 15 E.T.R. (3d) 251, 2005 BCSC 561 at paras. 111-12; Andersson v. Khan
(2006), 23 E.T.R. (3d) 40, 2006 BCSC 521 at paras. 33-34, affd 2007 BCCA 532.
8 Jung v. Lee Estate, 2007 BCSC 1740 at paras. 46-48; Beaudoin Estate v. Taylor (1999), 27 E.T.R. (2d) 208
(B.C.S.C.).
9 Vout v. Hay, [1995] 2 S.C.R. 876; Brydon v. Sirgiandis Estate, 2008 BCSC 749 at para. 141.
10 Scott v. Cousins (2001), 37 E.T.R. (2d) 113 at paras. 41-43 (Ont. Sup. Ct. J.).
11 Vout v. Hay, [1995] 2 S.C.R. 876 at para. 25. See also Rufenack v. Hope Mission, 2002 ABQB 1055 at para. 66
for a list of suspicious circumstances.
12 Clark v. Nash (1989), 61 D.L.R. (4th) 409 at 425 (per Lambert J.A.) (B.C.C.A.); Watson v. Watson and Yelich,
2004 BCSC 1724.
13 De Araujo v. Neto (2001), 40 E.T.R. (2d) 169, 2001 BCSC 935 at para. 68; Hix v. Ewachniuk Estate, 2008
BCSC 811 at paras. 60-72.
14 Vout v. Hay, [1995] 2 S.C.R. 876 at paras. 22, 24; Peters Estate v. Ewert (2002), 48 E.T.R. (2d) 91 at paras. 71-
72 (B.C.S.C.); Lowery v. Falconer, 2008 BCSC 516 at para. 56.
15 Maddess v. Racz, 2008 BCSC 1550, affd 2009 BCCA 539.
7.1.6
burden of proof is proportionate to the gravity of the suspicion.16 In Brydon v. Sirgiandis Estate (2008), 41
E.T.R. (3d) 104, 2008 BCSC 749, the Court held that the assessment of the strength of the suspicion is therefore
of great importance. The gravity of the suspicion will determine the degree of probability to which
testamentary capacity or knowledge and approval must be proved. In Brydon, Mr. Justice Halfyard held (at
para. 158) that due to the gravity of the suspicion in that case, what was required was a much higher degree of
probability within the civil standard, than a mere 51% probability.17
The doctrine of suspicious circumstances does not apply to undue influence allegations. A person opposing
probate has the legal burden of proving undue influence. The standard of proof remains the civil standard of
proof on a balance of probabilities.18
16 MacGregor v. Ryan, [1965] S.C.R 757 at 766; Vout v. Hay, [1995] 2 S.C.R. 876 at para. 24.
17 An Ontario judge recently queried whether the law regarding suspicious circumstances, as set out in Vout v.
Hay, is still valid in light of F.H. v. McDougall, 2008 SCC 53, in which the Supreme Court of Canada
emphasized that there is only one civil standard of proof: Re Henry Estate (2009), 96 O.R. (3d) 437 (Sup.
Ct. J.).
18 Vout v. Hay, [1995] 2 S.C.R. 876.
19 See also: Hix v. Ewachniuk Estate, 2008 BCSC 811 at paras. 55-59; Andersson v. Khan (2006), 23 E.T.R. (3d)
40, 2006 BCSC 521 at para. 29.
20 Jung v. Lee Estate, 2005 BCSC 1537 at paras. 51-52, revd on other grounds, 2006 BCCA 549.
21 Beaudoin Estate v. Taylor (1999), 27 E.T.R. (2d) 208 (B.C.S.C.).
7.1.7
One of the major innovations of the WESA will relate to compliance with the formalities of will-making.
Section 58 of WESA will introduce a dispensing power whereby the court may relieve against the
consequences of a breach of the formal requirements for execution and attestation of a will, and admit such a
will to probate. The court must be satisfied that, despite the non-compliance with the formalities of will-
making, the document contains the true testamentary wishes of the deceased. Such an amendment was first
recommended by the BC Law Reform Commission in 1981. A complete discussion of the issue can be found in
the 2006 report of the BC Law Institute: Wills, Estates and Succession: A Modern Legal Framework (BCLI Report
No. 45, June 2006) at 21-25.
Accordingly, it seems safe to say that, upon the introduction of the WESA, probate actions concerning whether
the formalities of will-making were met will quickly morph into applications under s. 58 to admit a will to
probate on the basis that, notwithstanding technical non-compliance, the document contains the true
testamentary wishes of the deceased.
C. Testamentary Capacity
The majority of probate actions seem to involve the issue of testamentary capacity. With an aging population,
and increasing incidence of cognitive disorders such as Alzheimers Disease, this situation shows no sign of
changing.
There is no statutory requirement for testamentary capacity, but it has been required by English law since time
immemorial.22 The capacity required to execute a will, like other juristic acts, involves the capacity to
understand the nature and effect of the act.23 Another purpose of this rule in the testamentary context,
according to the England and Wales Court of Appeal in Perrins v. Holland, 2010 EWCA Civ. 840 at para. 40, is to
prevent unsatisfactory or immoral disposals of accumulated wealth.
2. Other Considerations
The concept of testamentary capacity is quite complex and I will not purport to be exhaustive in my review. For the
purposes of this paper, I will summarize some basic principles underlying this area of the law.
24 Ouderkirk v. Ouderkirk, [1936] S.C.R. 619; De Araujo v. Neto (2001), 40 E.T.R. (2d) 169, 2001 BCSC 935 at paras.
127-28; Peters Estate v. Ewert (2002), 48 E.T.R. (2d) 91 at paras. 76-8 (B.C.S.C.).
25 Coleman v. Coleman Estate (2008), 45 E.T.R. (3d) 117, 2008 NSSC 396.
26 Leger v. Poirer, [1944] S.C.R. 151 at 161-62.
27 See also: Bates v. Finlay Estate (2002), 43 E.T.R. (2d) 1 at para. 109 (B.C.S.C.); Bayne v. Bartlett (2004), 6 E.T.R. (3d)
171 at para. 95 (Nfld. S.C).
28 McLean v. Gonzalez-Calvo, 2007 BCSC 646 at paras. 53, 67, 69; Stanton v. Stanton Estate, 2006 BCSC 1574, affd 2008
BCCA 32; De Araujo v. Neto (2001), 40 E.T.R. (2d) 169, 2001 BCSC 935 at paras. 125-29.
29 Sharp v. Adam, 2006 EWCA Civ. 449 at paras. 27.
30 McLean v. Gonzalez-Calvo, 2007 BCSC 646 at para. 53; Hix v. Ewachniuk Estate, 2008 BCSC 811 at para. 74.
31 Re Cranford (1975), 8 Nfld. & P.E.I.R. 318 (Nfld. S.C.); Laramee v. Ferron (1909), 43 S.C.R. 391 at 409; Re Johnson
Estate, 2007 ABQB 461 at para. 54.
7.1.9
c. Declaration of Incapacity Not a Bar
The fact that a person has been found to be incapable of managing his or her own affairs pursuant to adult
guardianship legislation such as the Patients Property Act does not lead automatically to a finding that she
lacked testamentary capacity at the time of preparing and executing a will. Diminished capacity does not
equate to lack of testamentary capacity.32
32 Royal Trust Co. v. Rampone, [1974] 4 W.W.R. 735 (B.C.S.C.); Lodge v. Royal Trust Corporation of Canada, 2003
BCSC 1416 at para. 49.
33 McLean v. Gonzalez-Calvo, 2007 BCSC 646 at para. 58; Rufenack v. Hope Mission, 2002 ABQB 1055 at para. 62, citing
Visnjak v. Jakovich, [1985] B.C.J. No. 1427 (QL) (S.C.) at para. 88.
34 Boughton v. Knight (1873), L.R. 3 P.D. 64; Bayne v. Bartlett (2004), 6 E.T.R. (3d) 171 at paras. 97-8, 117 (Nfld. S.C);
Re Culbert Estate (2006), [2007] 1 W.W.R. 121 at paras. 171-74 (Sask Q.B.).
35 Sharp v. Adam, 2006 EWCA Civ. 449 at paras. 64-65, 71-72, 78-79, citing Harwood v. Baker, 3 Moo. PC 282 at 291.
36 Woodward v. Roberts Estate, 2007 BCSC 1191.
37 De Araujo v. Neto (2001), 40 E.T.R. (2d) 169, 2001 BCSC 935 at paras. 125-29; Re Johnson Estate, 2007 ABQB 461 at
para. 118; Ritchie v. Royal Trust Corporation of Canada, 2007 SKCA 64 at para. 15.
38 ONeil v. Royal Trust Company (1945), 61 B.C.R. 544 at 548-49, 554 (per Bird J.A.), affd [1946] S.C.R. 622; Scott v.
Cousins (2001), 37 E.T.R. (2d) 113 at paras. 76, 97 (Ont. Sup. Ct. J.); Peters Estate v. Ewert (2002), 48 E.T.R. (2d) 91 at
para. 79 (B.C.S.C.).
7.1.10
The weight given to medical evidence about testamentary capacity will depend upon whether the doctor had
actually assessed the testator, or whether the opinion is based solely on clinical records. In Blackman v. Man
(2007), [2008] W.T.L.R. 389, the Chancery Court noted at para. 113:
The Court must be wary of placing much reliance on the theoretical conclusions of medical
witnesses, however eminent, who have not seen the testatrix but base their views on
inferences from other evidenceinferences as to which ultimately it is for the Court and
not an expert witness to decide whether they should be drawn.
Similar comments are made in Re Kaptyn Estate (2008), 43 E.T.R. (3d) 219 at paras. 100, 137 (Ont. Sup. Ct. J.);
Coleman v. Coleman Estate, 2008 NSSC 396; Sharp v. Adam, 2006 EWCA Civ. 449 at paras. 43, 77.
3. Summary
The issue of testamentary capacity is quite complex and may lead to very interesting medical and legal
questions. Keeping up-to-date with the findings of neuroscience may be one of the benefits of working in this
field. The Court in the recent UK case of Key v. Key, 2010 EWHC 408 noted at para. 95:
it must be recognized that psychiatric medicine has come a long way since 1870 [i.e. the
judgment of Banks v. Goodfellow] in recognizing an ever widening range of circumstances
now regarded as sufficient at least to give rise to a risk of mental disorder, sufficient to
deprive a patient of the power of rational decision making, quite distinctly from old age and
infirmity.
1. General Principles
The requirement to prove that the testator knew and approved the contents of the will is a distinct and
separate requirement from the issue of testamentary capacity. A will that does not express the true
intention of the testator will not be admitted to probate even if the testator had capacity and was not subject
to undue influence.39
The caselaw on knowledge and approval is nowhere near as extensive as that on testamentary capacity or
undue influence, and the subject is consequently not as well-understood. If a testator lacked capacity, then
there is no need for the court to consider the issue of knowledge and approval.40 The development of the
caselaw was also hampered by a rule, followed for nearly a century, that evidence of knowledge and approval
would be conclusive if the will was duly executed by a testator having testamentary capacity, and the will had
been read over by or to the testator or the contents were otherwise brought to his attention.41 There was a
progressive erosion of the rule culminating in the English case of In re Morris (1969), [1970] 1 All E.R. 1057,
[1971] P. 62. The Court will now consider all of the circumstances to determine whether the testator knew
and approved the contents of the will.42 Nevertheless, the courts still show some reluctance to invalidate a will
solely on the basis of lack of knowledge and approval, due to the inherent improbability of a capable testator
not reading or understanding such an important document as their will.43 Courts will prefer to decide a case
based upon testamentary capacity or undue influence.
39 Hoff v. Atherton (2004), [2005] W.T.L.R. 99 at paras. 27, 33; Johnson v. Pelkey (1997), 36 B.C.L.R. (3d) 40 at
para. 107, 17 E.T.R. (2d) 242 (S.C.); Coleman v. Coleman Estate, 2008 NSSC 396 at paras. 41-42.
40 Perrins v. Holland, 2010 EWCA Civ. 840 at para. 31; Maliwat v. Gagne, 2009 BCSC 1447 at para. 134.
41 Vout v. Hay, [1995] 2 S.C.R. 876 at paras. 26 and 27.
42 In re Morris (1969), [1970] 1 All E.R. 1057, [1971] P. 62 at 74-79; Tanner v. Public Trustee (1972), [1973] 1 N.Z.L.R.
68 (C.A.).
43 Re Morgan Estate (2007), [2008] W.T.L.R. 73 (Ch.).
7.1.11
To some degree, the issue of knowledge and approval is closely tied to the doctrine of suspicious
circumstances referred to above. In the recent case of Perrins v. Holland, 2010 EWCA Civ. 840, the England and
Wales Court of Appeal referred to knowledge and approval as being a shorthand reference to the removal of
suspicious circumstances. The caselaw in BC would suggest that the doctrine is more expansive than that.
If there are suspicious circumstances relating to the issue of knowledge and approval, the propounder must
dispel the suspicion and prove the righteousness of the transaction. The court must be judicially satisfied
that the paper propounded does express the true will of the Deceased. In other words, the propounder must
affirmatively prove, on the balance of probabilities, that the testator knew and approved the contents of the
will, including the effect of the provisions of the will. The burden is on the propounder to show that the
testators mind and will went with the deed of execution of the will.44
Proving the righteousness of the transaction does not involve scrutinizing the terms of the will. The court
does not have to be satisfied that the testator chose the most deserving beneficiaries. There is no overriding
requirement of morality. This phrase only refers to dispelling the suspicion raised.45
2. Relevant Factors
Whether there was knowledge and approval depends on the facts of each case. The following factors have
been held to be relevant to the analysis:
(a) whether the testator had language problems or suffered from vision or hearing problems46;
(b) whether the terms of the will were in simple language or was it prepared in dense,
impenetrable legal gobbledygook that the testator would likely not have understood47;
(c) whether the terms of the will marked a radical departure from previous wills48;
(d) whether there was a larger pattern of manipulative behavior by the main beneficiary of the
alleged will to obtain all of the deceaseds assets49;
(e) the presence or absence of independent legal advice;50 and
(f) whether statements or actions of the testator subsequent to the making of the alleged will
were fundamentally inconsistent with its terms.51
44 Wintle v. Nye, [1959] 1 All E.R. 552 at 557, 559 (per Viscount Simonds), at 561 (per Lord Reid) (H.L.);
Rycroft v. Cant, [1972] 3 W.W.R. 372 at 379 (B.C.S.C.); Russell v. Fraser (1980), 118 D.L.R. (3d) 733 at 739
(B.C.C.A.); Johnson v. Pelkey (1997), 36 B.C.L.R. (3d) 40, 17 E.T.R. (2d) 242 at paras. 111, 114 (S.C.); Lowery
v. Falconer, 2008 BCSC 516 at paras. 47, 50; Franks v. Sinclair, 2006 EWHC 3365 at para. 58 (Ch.).
45 Fuller v. Strum (2001), [2002] 2 All E.R. 87 at para. 32 (per Peter Gibson L.J.), at para. 65 (per Chadwick L.J.)
(C.A.).
46 Johnson v. Pelkey (1997), 36 B.C.L.R. (3d) 40 at paras. 116-21, 17 E.T.R. (2d) 242 (S.C.); Gaudet v. Knudsen,
[1985] B.C.J. No. 803 (QL) (S.C.), affd [1987] B.C.J. No. 2167 (QL) (C.A.); Re Uppal Estate, 2004 ABQB
412, [2004] A.J. No. 935 (QL); Wyniczenko v. Plucinska-Surowka, 2005 EWHC 2794 (Ch.).
47 Franks v. Sinclair, 2006 EWHC 3365 at paras. 65-66 (Ch.).
48 Lowery v. Falconer, 2008 BCSC 516.
49 Cooke v. Moore (1965), 52 W.W.R. 449 at 460 (N.S.) (B.C.S.C.); Lowery v. Falconer, 2008 BCSC 516.
50 Wintle v. Nye, [1959] 1 All E.R. 552 at 556 (H.L.); Franks v. Sinclair, 2006 EWHC 3365 (Ch.).
51 Cooke v. Moore (1965), 52 W.W.R. 449 (N.S.) (B.C.S.C.); Re Uppal Estate, 2004 ABQB 412, [2004] A.J.
No. 935 (QL); Bertolo v. Nadalini, [2007] O.J. No. 335 (QL) (Sup. Ct. J.).
7.1.12
3. Overlap with Rectification Issues
Questions may be raised as to whether some fraud or trickery was involved, to induce a person to sign a will, or
perhaps some form of innocent mistake.52 In this regard, it should be noted that some caselaw involving
knowledge and approvalsuch as the leading case of Re Morrisarose due to the limited power of probate
courts to rectify the terms of a will even in clear cases of drafting errors. In Re Morris, the Court resorted to the
doctrine of knowledge and approval to invalidate a codicil containing a clerical error, since the Court did not
have the power to add words to the codicil to reflect the testators true intent. In the end, the entire codicil
was held to be invalid due to lack of knowledge and approval.53
One of the important reforms contained in the WESA will be a greater power of the court to rectify wills.
Section 59 of the WESA sets out the grounds upon which a will may be rectified, such as a failure to carry out
the will-makers instructions. In the future, litigants may decide that the route of rectification under the
WESA may be less complicated than seeking to have a will invalidated on the basis of the doctrine of
knowledge and approval.
4. Leading Cases
It may be helpful to illustrate these general principles about knowledge and approval by reviewing leading case
authorities.
a. Russell v. Fraser
The leading case on knowledge and approval in British Columbia is Russell v. Fraser (1980), 118 D.L.R. (3d) 733
(B.C.C.A.), affg [1979] B.C.J. No. 41 (QL) (S.C.). Anne Bailey made a will in 1974 leaving various gifts to family
and the residue of her estate to the manager of her credit union (the defendant Fraser). She had sought
Frasers assistance in regards to preparing a will. The legacies that she wanted to leave amounted to $76,000.
Fraser facetiously suggested that he receive the balance of the estate, and such a residuary clause was indeed
inserted. In the end, Mrs. Baileys estate was close to $200,000, and the gift of the residue therefore amounted
to about 2/3 of the estate. The trial judge held that the defendant Fraser could not remove the suspicions
about the will, and could not satisfy the conscience of the Court that the testatrix knew and approved of the
contents of the will (para. 39). The majority of the will was admitted to probate, but not the clause relating to
the residue. The Court of Appeal affirmed the judgment, although it varied the costs award. Anderson J.A.
commented that the trial judge (Legg J.) was correct in holding that knowledge and approval required that
Mrs. Bailey be aware of the value or magnitude of the residue of her estate. Knowledge and approval involved
whether Mrs. Bailey properly appreciated the effect of the will. The defendant Fraser was required to
affirmatively prove that Mrs. Bailey did in truth appreciate the effect of what she was doing (i.e., leaving the
majority of her estate to Fraser) and he did not discharge this onus.
c. Franks v. Sinclair
The UK case of Franks v. Sinclair, 2006 EWHC 3365 (Ch.) is also quite instructive. The plaintiff Franks was a
solicitor who prepared the will of his late mother in 1994. She was 90 years old at the time. The 1994 will
divided the estate between Franks and his sister. Franks had received little or nothing in previous wills made by
his mother, as she intended to leave most of her estate to her grandson Jonathan. The plaintiff Franks claimed
that his mother rang him at work and said that she wanted to make a new will, which he then prepared. The
witnesses to the execution of the will included another lawyer at the plaintiffs firm. Franks read out the will to
his mother, in what the Court later found this to be a bit of a performance for the witnesses. She did not
comment on the change in the residuary clause. She may have scanned the will, but did not read it. Franks did
not provide a copy of the will to her. The Court held that there were clearly suspicious circumstances, as
Franks was instrumental in the preparation of the will and was also a substantial beneficiary. His mother did
not receive any independent legal advice. Further, Franks did not go through the will in everyday language.
The Court held that it was very unlikely that Mrs. Franks would have understood the effect of the clause
regarding the residue of the estate, as it was impenetrable and gobbledegook (para. 65). There is no
evidence that she understood the effect when it was read out to her. Given the history of the wills executed by
Mrs. Franks over the previous decades, the probability of changing her will in this manner was very low. The
plaintiff Franks therefore was unable to remove the suspicions about knowledge and approval.
5. Summary
Challenging a will on the basis of knowledge and approval may be overlooked, but it is important to
remember that this is a distinct requirement for proving the validity of a will. A will may be invalid even
though the testator had capacity and was not subject to undue influence. Further, the doctrine of knowledge
and approval, especially as it has been developed in BC, is more extensive than merely raising suspicious
circumstances. It may be vital to your case that the testator did (or did not) understand the effect of the will.
E. Undue Influence
1. General Principles
In order to render a will void, undue influence must be an influence which caused the execution of a paper
which pretends to express the testators mind, but which really does not. In other words, evidence which
shows mere persuasion or advice from an interested person will not suffice. What is
7.1.14
required is proof that the testators assent to the will was obtained by influence such that, instead of
representing what he wanted, the will is a product of coercion on the part of the defendant.54
There is a distinction between knowledge and approval of a will and undue influence. A testator may be fully
aware of what he or she is doing but have his or her independence of will completely overborne.55
Undue influence must be affirmatively proven. The raising of suspicious circumstances is not sufficient to
prove undue influence. The onus of proof stays with the person attacking the will. The burden of proof is the
civil standard of the balance of probabilities.56
If the only evidence to disprove undue influence comes from the person who is alleged to have coerced the
will, the court must be vigilant in examining the evidence and test such evidence against the preponderance of
probabilities that rationally emerge out of all the evidence in the case.57 Lack of independent legal advice,
coupled with a dominating relationship, may lead to a finding of invalidity based upon undue influence.58
The stakes are high in an undue influence claim, as there is a potential for an adverse costs award being made
against the challenger. Due to seriousness of the allegations, which are akin to fraud, the court may order the
party to pay special costs if the allegations are unproven. (See the discussion on costs below.)
Proving undue influence is also very difficult. Due to the nature of the issue, a party is usually forced to rely
upon circumstantial evidence.59 The Supreme Court of Canada has stated that these cases require a
meticulous examination of the facts.60 At the end of the day, however, it may come down to an exercise of
common sense, or showing that there is no other equally plausible explanation other than undue influence.61
2. Relevant Factors
In Scott v. Cousins (2001), 37 E.T.R. (2d) 113 (Ont. Sup. Ct. J.), Mr. Justice Cullity set out the following factors to
consider in an undue influence claim (at para. 114):
54 Lamoureux v. Craig, [1919] 3 W.W.R. 1101 (J.C.P.C.); Tribe v. Farrell (2003), 4 E.T.R. (3d) 288, 2003 BCSC
1758 at paras. 134-36, affd (2006), 21 E.T.R. (3d) 188, 2006 BCCA 38; Ravnyshyn v. Drys (2005), 15 E.T.R.
(3d) 251, 2005 BCSC 561 at paras. 99, 102ff; Bates v. Finlay Estate (2002), 43 E.T.R. (2d) 1 at paras. 115-16
(B.C.S.C.).
55 Hix v. Ewachniuk Estate, 2008 BCSC 811 at para. 87.
56 Vout v. Hay, [1995] 2 S.C.R. 876 at para. 28; Ravnyshyn v. Drys (2005), 15 E.T.R. (3d) 251, 2005 BCSC 561
at paras. 93, 110, 112.
57 Hix v. Ewachniuk Estate, 2008 BCSC 811 at paras. 90-92.
58 De Araujo v. Neto (2001), 40 E.T.R. (2d) 169, 2001 BCSC 935 at paras. 136-38; Hix v. Ewachniuk Estate, 2008
BCSC 811 at paras. 102-4.
59 De Araujo v. Neto (2001), 40 E.T.R. (2d) 169, 2001 BCSC 935 at para. 132; Hix v. Ewachniuk Estate, 2008
BCSC 811 at para. 88; Streisfield v. Goodman (2001), 40 E.T.R. (2d) 98 at para. 139, [2001] O.J. No. 3314
(QL) (Sup. Ct. J.), affd (2004), 8 E.T.R. (3d) 130 (Ont. C.A.); Callender v. Berde. [1996] B.C.J. No. 1042
(QL) (S.C.) at para. 32.
60 Geffen v. Goodman Estate, [1991] 2 S.C.R. 353 at 381.
61 Hix v. Ewachniuk Estate, 2008 BCSC 811 at paras. 106-14, affd (2010), 6 B.C.L.R. (5th) 85, 2010 BCCA 317
at para. 16; De Araujo v. Neto (2001), 40 E.T.R. (2d) 169, 2001 BCSC 935 at para. 139-140; Scott v. Cousins
(2001), 37 E.T.R. (2d) 113 at paras. 39, 123 (Ont. Sup. Ct. J.)
7.1.15
(a) the willingness or disposition of the persons to have exercised undue influence;
(b) whether an opportunity existed;
(c) the vulnerability of the testator;
(d) the degree of pressure that would be required;
(e) absence of moral claims of the beneficiaries;
(f) whether the will departs radically from the dispositive pattern of earlier wills.
Another helpful list was supplied by the Court in Ravnyshyn v. Drys (2005), 15 E.T.R. (3d) 251, 2005 BCSC 561
at para. 99.
62 Gamache v. Gamache (2005), 22 E.T.R. (3d) 114, 2005 ABQB 944 at para. 58; Re Marsh Estate (1991), 104
N.S.R. (2d) 266 (C.A.).
63 Re Crompton, [1938] O.R. 543 at 583 (H.C.J.); Scott v. Cousins (2001), 37 E.T.R. (2d) 113 at paras. 114 (Ont.
Sup. Ct. J.); Streisfield v. Goodman (2001), 40 E.T.R. (2d) 98 at para. 138, [2001] O.J. No. 3314 (QL) (Sup.
Ct. J.), affd (2004), 8 E.T.R. (3d) 130 (Ont. C.A.).
64 Scott v. Cousins (2001), 37 E.T.R. (2d) 113 at paras. 112-13 (Ont. Sup. Ct. J.).
65 See D.R. Klinck, Does the Presumption of Undue Influence Arise in the Testamentary Context? (2005)
24 E.T.P.J. 125.
7.1.16
IV. Procedural Steps and the Rules of Court
66 See chapter 18 of Probate and Estate Administration Practice Manual; Janine A.S. Thomas, The Problem
Will (PBLI, 1998), at 2.17 to 2.20; Sandra K. Ballance, Caveats, Pre-Grant Citations and Subpoenas (CLE,
June 1992).
67 Chang v. Chang Estate, 2010 BCCA 111 at para. 57; Hetherington v. McLeod, 1991 BCSC 1 at paras. 18-23.
68 Re Trinder Estate, [1987] B.C.J. No. 1476 (QL) (S.C.).
69 Romans Estate v. Tassone (2009), 51 E.T.R. (3d) 1, 2009 BCCA 421.
7.1.17
A probate action may also be commenced by a party seeking to revoke a grant of probate in common form
issued to the executor. In that case, the parties would be the same except that the executor is now one of the
defendants, and would make a counterclaim for proof in solemn form of the will. The plaintiff may seek a
declaration of intestacy, or an Order that an earlier will be admitted to probate.
The case of Powell v. Powell (1987), 21 B.C.L.R. (2d) 109 (S.C.) stands for the proposition that a probate action
cannot be commenced for the sole purpose of invalidating a will. The Court in Powell also indicated that the
action would not extend back to numerous prior wills of the testator. A party also cannot commence an
action for proof in solemn form of a will if there exists a later will, and that later will has not been pronounced
invalid.70
Rule 21-5 (the old Rule 61) also contains provisions for a proof in solemn form proceeding commenced by way
of petition. Such a provision is rarely used, as it can only be used if the matter is not contentious.71 A
contested probate matter is ill-suited to be heard in a summary manner, and such a proceeding would
inevitably be transferred to the trial list and proceed as an action under Rule 21-4.
The provisions of Rule 21-5 also allow the Court to order that a will be proven in solemn form by way of a
probate action. Such a result arose in the intriguing case of Romans Estate v. Tassone, 2009 BCSC 194. This
case involved a dispute over the estate of Mr. Romans. A young caregiver named Carole alleged that Mr.
Romans left a will appointing her as executor and leaving her everything. She then commenced a legal action
in regards to an earlier transfer of property by Mr. Romans, and sought production of the file of the solicitor
who handled the real estate conveyance. The solicitor had serious concerns about the validity of the will being
presented by Carole, due to evidence of her abusive relationship with the elderly Mr. Romans. The solicitor
required that she obtain a grant of probate before he would produce his file to her. He also filed a caveat in
relation to the estate. The Court held that the caveat must be struck out, since the solicitor had no interest in
the estate, but that the solicitor was justified in requiring a grant of probate. The Court ordered that Carole
commence a probate action within 6 months, or her action concerning the property conveyance would be
dismissed. The BC Court of Appeal upheld this decision: 2009 BCCA 421. The suspicious circumstances of the
case justified the chambers judges decision in requiring that the will be proven in solemn form. It did not
matter that the solicitor had no status to seek an Order for proof in solemn form; once such concerns had
been brought to the attention of the Court, the chambers judge had a duty to act upon the concern in an
effective manner. The Court of Appeal held that the apparent intent of Rule 61(11)now Rule 21-5(13)
was to order that executors prove a will in solemn form if it has been called into question.
A. General Principles
Costs in litigation are something of a regulatory device.76 The potential for an adverse award of costs imposes
discipline on the process, and helps to prevent frivolous or meritless claims. An award of costs may either
indemnify (partially or completely) a successful party, or be used to penalize a party who made claims devoid
of merit, depending upon the circumstances.
The general rule in civil litigation, as set out in Rule 14-1(9), is that costs follow the event unless the court
orders otherwise. An award of costs is always discretionary, but such discretion must be exercised judicially.
There are no strict guidelines for departing from the normal rule, but the court will consider matters such as
hardship, the conduct of the parties, and whether the award of costs would upset the balance achieved by the
award itself.77
It must be remembered that estate litigation is a subset of civil litigation, and is not immune from these
general principles. An Ontario judge recently commented that the discipline imposed by the costs regime has
particular importance in the emotionally-charged atmosphere of estate litigation.78 Accordingly, the general
rule of loser pays will also apply in estate litigation unless there is good reason to make a different award.79
For the reasons that follow, however, there is often good reason to depart from this rule in probate actions.
As noted by the BC Court of Appeal in Re Collett Estate (2005), 48 B.C.L.R. (4th) 102, 2005 BCCA 291, it is not
uncommon in estate litigation for the costs of all parties to be paid out of the estate.
It is important to understand these rules concerning costs awards in estate litigation, and ensure that your
client understands them as well. The possibility of an adverse costs award will bear upon litigation strategy. As
part of client management, it is necessary to fully advise the client at the
75 There is interesting caselaw on the evidence required at these initial applications, such as whether the
challenger can prove that there is any basis to require that the will be proven in solemn form. See: Dieno
Estate v. Dieno (1996), 147 Sask. R. 14, [1996] 10 W.W.R. 375 (Sask. Q.B.); Quaintance v. Quaintance Estate,
2006 ABCA 47.
76 Chalmers v. Uzelac, 2004 BCCA 533, affg (2003), 2 E.T.R. (3d) 22 (B.C.S.C.).
77 Gold v. Gold (1993), 82 B.C.L.R. (2d) 180 (C.A.).
78 Salter v. Sear Estate, 2009 CanLII 28403.
79 Carr v. Goodman Estate (1989), 35 B.C.L.R. (2d) 91 (C.A.).
7.1.20
outset of the file what types of costs awards could be made. Clients are often under the popular
misconception, discussed below, that there is no risk to bringing a probate action since all costs will eventually
be paid by the estate.
2. Policy Considerations
The intricate rules for costs in probate actions are based upon important policy considerations, and it would
be unfortunate if the unique nature of these actions was overlooked by the courts. For a variety of reasons,
probate actions are unlike typical litigation. As noted above, they cannot be settled or compromised without
leave of the court.83 Further, a Court of Probate has always had an inquisitorial role to ensure that only the
valid wills of deceased persons are admitted to probate. In Otis v. Otis (2004), 7 E.T.R. (3d) 221 (Ont. Sup. Ct. J.),
Mr. Justice Cullity of the Ontario Superior Court of Justice commented on the probate jurisdiction of the
courts (at 227-29):
The role of the court is not simply to adjudicate upon a dispute between parties. The
judgment of the court granting probate does not bind only the parties to the proceeding.
Unless, and until, it is set aside, it operates in rem and can affect the rights of other persons.
For this reasonand perhaps more fundamentallybecause the court is understood to
have, in a sense, a responsibility to the testator, it would not grant probate in solemn form
on an unopposed application without evidence: Widdifield, Surrogate Court Practice and
Proceedings (second edition, 1930), at 434 - 5. Nor, as a general rule, would it pronounce
against a testamentary instrument solely on the ground that all interested parties
consented to probate of an earlier will
80 Salter v. Sear Estate, 2009 CanLII 28403; DUrzo v. DUrzo, [2007] O.J. No. 594 (QL) (S.C.J.) at para. 2.
81 Woodward v. Roberts Estate, 2007 BCSC 1549; McDougald Estate v. Gooderham (2005), 255 D.L.R. (4th) 435,
17 E.T.R. (3d) 36 (Ont. C.A.); Andruchow v. Seniuk (2005), 20 E.T.R. (3d) 123, 2005 ABQB 780.
82 Breau v. Onge Estate, 2009 NBCA 36 at para. 60. See also Re Foote Estate, 2010 ABQB 197.
83 Re Ireland (1983), 147 D.L.R. (3d) 480 (B.C.C.A.); Jung v. Lee Estate, 2007 BCSC 1740.
7.1.21
Accordingly, due to the importance of ensuring that the testamentary wishes of deceased persons are fulfilled,
and only valid wills are probated, persons should not be hesitant to bring their concerns to the court.84 The
possibility of an adverse costs award, or simply being out of pocket, can be a big disincentive. At the same time,
the bar should not be set too low, or that would encourage frivolous litigation which depletes the estate.85
84 Dool v. Nazarewycz (2009), 2 Alta. L.R. (5th) 36, [2009] 7 W.W.R. 636, 2009 ABCA 70 at paras. 89-90.
85 Griffin v. Canada Trust, [1995] B.C.J. No. 2132 (QL) (S.C.); Breau v. St. Onge Estate, 2009 NBCA 36 at
paras. 3, 58, 66; Re Culbert Estate (2006), [2007] 1 W.W.R. 121 at para. 181 (Sask. Q.B.).
86 Twist v. Tye, [1902] P. 92; Spiers v. English, [1907] P. 122; Re Cutliffe, [1958] 3 All E.R. 642; Kostic v. Chaplin,
2007 EWHC 2909.
87 Trites v. Johnson (1945), 61 B.C.R. 397, [1945] 3 W.W.R. 100 (S.C.); Maben v. Urquhart (1968), 1 D.L.R. (3d)
413 (B.C.S.C.); Lee v. Lee Estate (1993), 84 B.C.L.R. (2d) 214, 50 E.T.R. (297 (S.C.).
88 Dool v. Nazarewycz (2007), 31 E.T.R. (3d) 57, 2007 ABQB 12, varied [2009] 7 W.W.R. 636, 2009 ABCA 70;
Manitoba (Public Trustee) v. Ballen (1992), 44 E.T.R. 279 (Man. C.A.); Re Olenchuk (1991), 43 E.T.R. 146, 4
C.P.C. (3d) 6 (Ont. Gen. Div.).
7.1.22
Provisos (1) and (2) are, however, subject to a fourth proviso that even if either is applicable,
but the unsuccessful party has advanced but failed to prove pleas of undue influence or
fraud, then he is condemned in the costs not only of that charge but of the whole action.
The Morton decision was more recently approved by the BC Court of Appeal in Stanton v. Stanton Estate, 2008
BCCA 362.89
89 See also: Fuller Estate v. Fuller, 2002 BCSC 1703, affd (2004), 7 E.T.R. (3d) 1, 2004 BCCA 218; Re Kemp
Estate; Strain v. Kemp (2006), 22 E.T.R. (3d) 105, 2006 BCSC 58; Bates v. Finlay (2002), 43 E.T.R. (2d) 1,
2002 BCSC 159; Maliwat v. Gagne, 2009 BCSC 1447 at paras. 137-40.
90 Re Kemp Estate; Strain v. Kemp (2006), 22 E.T.R. (3d) 105, 2006 BCSC 58; Maliwat v. Gagne, 2009 BCSC
1447 at para. 141.
91 Alexander v. Fiedler, [2004] O.J. No. 5498 (QL) (S.C.J.); Kostic v. Chaplin, 2007 EWHC 2909 at para. 9;
Fuller Estate v. Fuller, 2002 BCSC 1703, affd (2004), 7 E.T.R. (3d) 1, 2004 BCCA 218; Babchuk v. Kutz, 2007
ABQB 88 at para. 11.
92 Ram v. Prasad (1998), 25 E.T.R. (2d) 119, 24 C.P.C. (4th) 383 (B.C.S.C.); Dool v. Nazarewycz (2007), 31
E.T.R. (3d) 57, 2007 ABQB 12, varied 2009 ABCA 70; Hix v. Ewachniuk Estate (2008), 43 E.T.R. (3d) 113,
2008 BCSC 1258.
93 Dool v. Nazarewycz (2007), 31 E.T.R. (3d) 57, 2007 ABQB 12, varied 2009 ABCA 70; Re Coughlan Estate,
2003 PESCTD 75; Weinar v. Elman, [2001] O.J. No. 4940 (QL) (S.C.J.).
7.1.23
noted that the so-called rule of Larke v. Nugus, often cited by UK courts, provides that an executor is under an
obligation to provide full and frank information to persons who might have an interest in attacking the will, so
as to avoid costly litigation if possible.94
It is not always clear when the first proviso in Morton should apply, so that the unsuccessful party is entitled to
costs out of the estate, or when the second proviso should apply so that there is simply no costs award being
made against that party. As will be discussed further below, this distinction may be more relevant when
reviewing different phases of the litigation.
94 Larke v. Nugus (1979), 123 Sol. Jo. 337, [2000] W.T.L.R. 1033 (C.A.); Jarom v. Sellars, 2007 EWHC 1366.
95 McLean v. Gonzalez-Calvo, 2007 BCSC 648; Stanton v. Stanton Estate, 2008 BCSC 470; Bates v. Finlay (2002),
43 E.T.R. (2d) 1, 2002 BCSC 159 at paras. 120-26.
96 Cullity J. makes this point in Mitchell v. Mitchell (2001), 57 O.R. (3d) 259 at paras. 56-59 (S.C.J.).
7.1.24
2. What Was the Result?
It may be obvious that the actual result in the case will bear upon the appropriate costs award; nevertheless, it is
worth noting that the resulting costs award in a case where there was not a shred of evidence to support the
claim will be quite different than a case where the outcome was always in doubt.
4. Settlement Offers
The court will review any offers to settle made by the parties during the litigation to assess the proper award of
costs.99 It is sometimes awkward to make a settlement offer in a probate action, depending upon factors such
as the nature of the beneficiaries, but it can sometimes have costs consequences.100
97 Weinar v. Elman, [2001] O.J. No. 4940 (QL) (S.C.J.); Re Barrett Estate (2003), [2005] 2 W.W.R. 262 at 273-
74, 2003 ABQB 986; Babchuk v. Kutz, 2007 ABQB 88 at para. 8; Dool v. Nazarewycz (2007), 31 E.T.R. (3d)
57, 2007 ABQB 12.
98 Dool v. Nazarewycz (2009), 2 Alta. L.R. (5th) 36, [2009] 7 W.W.R. 636, 2009 ABCA 70 at para. 92.
99 Babchuk v. Kutz, 2007 ABQB 88 at paras. 59-69, 80-84.
100 Hix v. Ewachniuk Estate (2008), 43 E.T.R. (3d) 113, 2008 BCSC 1258. On the difficulties of making a formal
Offer to Settle under the old Rule 37, see: Woodward v. Roberts Estate, 2007 BCSC 1549.
101 Re Starko Estate, 2009 BCSC 1423, Marshall v. Ruffolo, 2008 BCSC 170 at paras. 67-74.
102 Davey v. Gruyaert, 2006 BCSC 1812; Re Sear Estate, 2010 BCSC 339.
103 Brammell v. United Kingdom of Great Britain and Northern Ireland, [1997] B.C.J. No. 2383 (QL) (S.C.);
Morash v. Morash Estate, [1997] N.S.J. No. 403 (C.A.); Wamboldt v. Wamboldt, 2010 NSSC 228.
7.1.25
apparent that a challenge to a will cannot succeed.104 Taking the case all the way to trial in light of
overwhelming evidence to the contrary is indicative of ulterior motives and revenge or spite, and can result
in an adverse award of special costs.105 Accordingly, it is possible that the court may order that a party obtain
special costs from the estate for the first portion of the litigation, if the exceptions in Mitchell v. Gard are met,
but then order that the party either bear their own costs or pay costs to the other parties for the remaining
portion of the litigation if it was unreasonable to continue.
If a party is successful in some, but not all claims, the costs award may be adjusted accordingly. In Hix v.
Ewachniuk, the plaintiffs were successful in proving that the will was invalid as a result of the defendants
undue influence, but did not succeed in other claims such as lack of testamentary capacity. The Court
awarded the plaintiffs 80% of their special costs: 2008 BCSC 1258.
8. What Party?
Applying these factors will lead to different results depending upon the identity of the party under
consideration. In probate actions, there are generally four (overlapping) categories of characters involved: (1)
the executor of the will ultimately admitted to probate; (2) the successful defender of the will or the
successful challenger; (3) the unsuccessful challenger/defender; and (4) the would-be executor of an invalid
will.
The usual rule in estate litigation is that the personal representative is entitled to be indemnified by the
estate.108 It is a cost of administration that is properly incurred, and the quantum of costs may be considered
at a passing of accounts.109 Depending upon the circumstances of the case, the court may order that such
costs be paid by an unsuccessful challenger to the will, rather than out of the estate.
It would be an unusual case for an executor to be denied costs entirely, as opposed to the question of whether
the costs are reasonably incurred. If the executor acted unreasonably during the litigation, and stonewalled
reasonable requests for information, therefore inviting the litigation to take place,
104 Chalmers v. Uzelac (2003), 2 E.T.R. (3d) 22 (B.C.S.C.), affd 2004 BCCA 533; Sanguinetti v. Korpiel, [1998]
B.C.J. No. 2669 (QL) (S.C.); Re Bermingham Estate, 2007 CanLII 31776; Kostic v. Chaplin, 2007 EWHC
2909 at paras. 27, 30; Bates v. Finlay (2002), 43 E.T.R. (2d) 1, 2002 BCSC 159.
105 Babchuk v. Kutz, 2007 ABQB 88 at para. 19; McLean v. Gonzalez-Calvo, 2007 BCSC 648.
106 Atwal v. Atwal Estate, 2010 BCSC 1261; Todd v. Walker, 2009 BCSC 537; Booth Estate v. McGowan, [1998]
O.J. No. 5261 (QL) (Gen. Div.); Ram v. Prasad (1998), 25 E.T.R. (2d) 119, 24 C.P.C. (4th) 383 (B.C.S.C.);
George Estate v. Gabriel, 2009 BCSC 198 at para. 127.
107 Abercrombie Estate v. Abercrombie, 2008 BCSC 389; Wiest v. Jopp-Shelton, 2004 SKQB 222.
108 Re Kemp Estate; Strain v. Kemp (2006), 22 E.T.R. (3d) 105, 2006 BCSC 58 Johnson Estate v. Forbes (2007),
[2008] 2 W.W.R. 494, 2007 MBQB 302, citing Thompson v. Lamport, [1945] S.C.R. 343.
109 Milwarde-Yates v. Sipila, 2009 BCSC 277.
7.1.26
there should be costs consequences. It may be an issue for the executors compensation, but may also be
grounds for ordering the executor to pay costs out of his or her own pocket.110
The typical costs award for a party who successfully challenges the validity of a will, or who successfully defends
such a challenge, would also be special costs. The question would usually be whether it is more appropriate that
those costs come from the estate or from an opposing party. The various factors set out above would also be
considered to tailor the appropriate award.111
It is the issue of the unsuccessful challenger or defender to the will that is the focus of cases like Mitchell v. Gard
and Morton Estate: should the normal rule in civil litigation (the loser pays rule) be departed from, and should
this party obtain their costs out of the estate? If so, should there be full indemnity, or should the party only
receive a portion of their costs from the estate? The long list of factors set out above will be considered. If there
were baseless allegations of undue influence made by this party, it is more likely that he or she will be denied costs
out of the estate, and actually be ordered to pay special costs to the other parties. If the party was forced into
the litigation, due to serious questions about the validity of the will that needed to be resolved by a court, then it
would be appropriate for this party to obtain special costs out of the estate.
A more intriguing question concerns the unsuccessful would-be executor. This person would have put forward
a document that was ultimately found to be invalid. Should he or she be treated in the same manner as an
executor/trustee, and be indemnified out of the estate? It should be remembered that there is no duty to
propound a will, especially if there are serious questions about its validity. Further, it may have been apparent
following the discovery process that the will could not be admitted to probate, yet the would-be executor
pushed the matter to trial.
The issue of whether such a party should be entitled to any costs was thoroughly canvassed by Mr. Justice Burnyeat
in Ram v. Prasad (1998), 25 E.T.R. (2d) 119, 24 C.P.C. (4th) 383 (B.C.S.C.). There are three general situations in which
potential but unsuccessful executors should be disentitled to costs: (1) if they put forward a document they knew
could not be supported; (2) he or she was also a beneficiary of that alleged will; (3) some other inequitable
conduct.112 For instance, if the would-be executor was intimately involved in the making of a will, and coerced the
testator into making it, that person should not be entitled to any costs out of the estate, and would likely be ordered
to pay special costs to the estate. If the role of the would-be executor was more innocent, and he or she took the
position that the question of the wills validity should properly be resolved by a court, then the result would be
much different. In Fuller Estate v. Fuller, 2002 BCSC 1703, affd (2004), 7 E.T.R. (3d) 1, 2004 BCCA 218, the Court drew
an analogy between the would-be executor and an interpleader, and allowed costs out of the estate.
D. Summary
The determination of the appropriate award of costs in a probate action is therefore much more complex than
ordering that all parties obtain their costs out of the estate ATM, or that the loser pays. It is important to
have a complete understanding of the costs regime for probate actions to properly plan your litigation strategy,
while also keeping your clients expectations in check. The increased scrutiny on the conduct of the litigation,
when tailoring a costs award, should only increase with the objective of proportionality found in the Civil Rules
of Court.
110 An adverse costs award was recently made against an executor (in a different set of circumstances) in
MacLean Estate v. Christiansen, 2010 BCCA 374.
111 Bates v. Finlay (2002), 43 E.T.R. (2d) 1, 2002 BCSC 159; McLean v. Gonzalez-Calvo, 2007 BCSC 648; George
Estate v. Gabriel, 2009 BCSC 198 at para. 127; Stanton v. Stanton, 2008 BCSC 470; Ravnyshyn v. Drys (2005),
19 E.T.R. (3d) 81, 2005 BCSC 1216.
112 Ram v. Prasad (1998), 25 E.T.R. (2d) 119, 24 C.P.C. (4th) 383 (B.C.S.C.). See also: Twist v. Tye, [1902] P. 92;
Brydon v. Malamus (2009), 45 E.T.R. (3d) 103, 2009 BCSC 80; Andruchow v. Seniuk (2005), 20 E.T.R. (3d)
123, 2005 ABQB 780.
7.1.27
VI. Appendix AProposed Amendments to Supreme Court Civil Rules
The following is an excerpt from Consultation Paper on New Probate Rules, prepared by the Probate Rules Reform
Project Committee (British Columbia Law Institute), released as a work in progress on May 17, 2010.
1. Rule 21-4
Interpretation
(1) In this rule, probate action means an action for
(a) the grant of probate of the will of, or letters of administration of the estate of, a
deceased person,
(b) the revocation of a grant, or
(c) an order pronouncing for or against the validity of an alleged testamentary
paper,
but does not include a proceeding governed by Rule 21-5.
Dispute as to the validity of a testamentary paper
(2) In an action in which the validity of a testamentary paper is questioned, all persons having
an interest in upholding or disputing its validity must be joined as defendants.
Start of action
(3) A probate action must be started by notice of civil claim, and Part 1 of the notice of civil
claim must contain a statement of the interest of the plaintiff and of each defendant in the
estate of the deceased.
Parties
(4) Each person who is entitled or claims to be entitled to administer the estate of a deceased
person under or by virtue of an unrevoked grant of probate or letters of administration must
be made a party to any action for revocation of the grant, and by leave of the court a person
interested in the estate, but not named as a defendant, may defend the action as if the person
were a defendant.
Action for revocation of grant
(5) In an action for the revocation of a grant of probate or administration,
(a) if the action is started by a person to whom the grant was made, the person
must file the grant within 7 days after the filing of the notice of civil claim, or
(b) if a defendant to the action has the grant in his or her possession or under his
or her control, the defendant must file it within 7 days after the service of the
notice of civil claim on him or her,
and the person to whom the grant was issued must not act under it without leave of a
registrar.
Failure to lodge grant on action for revocation
(6) If a person fails to comply with subrule (5), a registrar may issue a citation in Form 90
calling on the person to bring the grant into the registry, and a person against whom the
citation is issued must not take any step in the action without leave of the court until the
person has complied with the citation.
Counterclaim
(7) A defendant to a probate action who alleges that he or she has a claim or is entitled to
relief in respect of a matter relating to the grant of probate or letters of administration must
serve a counterclaim in respect of that claim or relief.
7.1.28
Failure to serve notice of civil claim
(8) If the plaintiff fails to serve a notice of civil claim, a defendant may, with the leave of the
court, serve a counterclaim, and the action must then proceed as if the defendant were the
plaintiff.
Response to civil claim limited to proof in solemn form
(9) In a probate action, a response to civil claim may state that
(a) the defendant merely requires that the will be proved in solemn form, and
(b) the defendant only intends to cross-examine the witnesses produced in
support of the will,
and, in that event, the defendant is not liable for costs unless the court determines that there
was no reasonable ground for requiring proof in solemn form.
Certain rules not to apply
(10) Rules 3-8 (1), (2), (9) and (10) and 9-8 do not apply to a probate action.
Order for discontinuance or dismissal
(11) At any stage of a probate action, the court may order the action be discontinued or
dismissed, and may order that a grant of probate or administration be made to the person
entitled.
Compromise
(12) A probate action must not be compromised without leave of the court.
2. Rule 21-5
Proof in solemn form
(13) If the circumstances appear to justify the direction, the court may direct that proof of
the will be made in solemn form.
Petition required
(14) A proceeding for proof of a will in solemn form must be started by petition in Form 66
and Rule 16-1 applies.
Service
(15) After a proceeding is started under subrule (14) for proof of a will in solemn form, copies
of the petition must be served by personal service on all persons having an interest in
upholding or contesting the validity of the will.