IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Stanton v. Stanton Estate,

 

2008 BCSC 470

Date: 20080418

Docket: S95271

Registry: New Westminster

Between:

Ophelia Stanton

Plaintiff

And

Jo Ann Bernadette Stanton, Executrix and Trustee

of the Estate of Donald Wilfred Stanton, Deceased

and the said Jo Ann Bernadette Stanton

Defendants

Before: The Honourable Mr. Justice Bernard

Application for Costs

Counsel for the Plaintiff:

R. Henderson

Counsel for the Defendants:

M.V. Barnard

By written submissions filed by Plaintiff::

February 27, 2007

 

By written submissions filed by Defendant:

March 1, 2007

 

 

New Westminster, B.C.

A.         Nature of Relief Sought

[1]                The defendant seeks special costs against the plaintiff.  This application arises from the plaintiff’s unsuccessful challenge to the validity of the Will of her late husband.

B.        Overview

[2]                By Reasons for Judgment issued October 26, 2006, the plaintiff’s claim, that the Last Will and Testament of her deceased husband was invalid, was dismissed.

[3]                Prior to trial, the plaintiff had alleged “undue influence” by the defendant Jo Ann Stanton, the daughter of the testator and the primary beneficiary under the Will.  The plaintiff abandoned this allegation at trial, and argued that the testator lacked testamentary capacity and that there were suspicious circumstances surrounding the execution of the Will.  All these allegations were entirely devoid of merit.

[4]                The plaintiff was the testator’s second wife, whom he had married soon after the death of his first wife.  The testator was an 81-year old man who was failing physically but not mentally.  He was hospitalized about five months into the new marriage and then died about five months later.  At the time of the execution of the Will, the plaintiff had been married to the testator for about two weeks.  The marriage had been preceded by a six-month courtship.  At the time of the marriage, the plaintiff was 42 years of age, and was employed by the defendant as a house-cleaner. 

[5]                The testator left the bulk of his estate to his only offspring, with whom he had a close and loving relationship.  At the time he executed the Will in question, the testator was living independently and was mentally sound.  In contemplation of the marriage to the plaintiff he attended upon his solicitor to execute a new will.  His solicitor took instructions from him alone, without concern.  At the trial, even the plaintiff testified that the deceased had full mental competency at the time of the execution of the Will; that he had accurately informed her of the provisions of his Will shortly after its execution; and, that any discussions about the testator providing for his new wife occurred after the Will was executed.

[6]                Prior to the execution of the Will, there had been no discussion between the plaintiff and the testator about the testator’s estate.  In other words, the Will’s provisions were not inconsistent with any earlier discussions or agreements.  The Will gave the testator’s primary asset, his home, to his only offspring, Jo Ann Stanton.  Under the Will, the plaintiff was given the deceased’s cars.  In addition to executing a new Will upon his marriage, the deceased also changed the title to his home by naming his daughter as a joint tenant to ensure that ownership passed to her upon his death.

[7]                The plaintiff commenced the within action two-and-a-half years after the grant of Letters of Probate, and well after she had commenced a Wills Variation action.  She did not oppose the initial grant and request proof of the Will by filing a caveat or citation to propound a Will.  She was entitled to do so as a beneficiary and, thereby, limit her exposure to costs by filing a defence limited in scope, pursuant to Rule 62(10) of the Supreme Court Rules, B.C. Reg. 221/90.

C.        Synopsis of the Defendant’s position

[8]                The defendant submits that she has been put to great expense to defend an action which was bound to fail.  She submits that she is entitled to special costs because: (a) the plaintiff made a serious and unfounded allegation of undue influence which was not withdrawn until the trial commenced; (b) the plaintiff brought this action for improper motives, to wit: (i) as retaliation for the defendant claiming, in the Wills Variation action, that the marriage was void, (ii) to delay resolution of the Wills Variation Act, R.S.B.C. 1996, c. 490, action, and (iii) to gain a collateral benefit in the Wills Variation Act action; (c) the defendant made offers to settle under Rule 37A of the Rules of Court; (d) the plaintiff failed to respond reasonably to Notices to Admit; (e) the plaintiff conducted herself improperly throughout the course of the litigation (e.g., in particulars, she claimed undue influence and not mental incapacity, and reversed this position at the outset of the trial); and (f) the plaintiff’s actions were taken only for the purposes of harassment and retaliation and were, therefore, an abuse of process.

[9]                The defendant submits that, in all the circumstances, an order of special costs is appropriate and needed to prevent a depletion of the estate due to the acts of the plaintiff.

D.        Synopsis of the Plaintiff’s Position

[10]            The plaintiff opposes the order sought by the defendant.  She submits that all costs ought to be paid out of the estate because there was a genuine issue to be tried, one which was brought about by the conduct of the defendant by her pleadings in the Wills Variation action, when she called into question the mental capacity of the testator in relation to the marriage.

E.         Analysis

(i)  Should the usual rule that ”costs follow the event” apply?

[11]            In Vielbig v. Waterland Estate (1995), 1 B.C.L.R. (3d) 76 (C.A.) the Court quoted with apparent approval from ¶13 in Lee v. Lee Estate (1993), 84 B.C.L.R. (2d) 341 (S.C.), where Master Horn made the following remarks about the application of the general rule regarding costs:

In probate or administration actions or in proceedings for the construction of wills, the rule may be more frequently departed from.  In such cases where the validity of a will or the capacity of the testator to make a will or the meaning of a will is in issue, it is sometimes the case that the costs of all parties are ordered to be paid out of the estate.  This is upon the principle that where such an issue must be litigated to remove all doubts, then all interested parties must be joined and are entitled to be heard and should not be out of pocket if in the result the litigation does not conclude in their favour.  The estate must bear the cost of settling disputes as a cost of administration.  This is the reasoning which underlies such cases as Re Dingwall (1967) 65 D.L.R. (3d) 43 (Ont. H.C.) and McNamara v. Hyde [1943] 2 W.W.R. 344 (B.C.S.C.) and Re Lotzkar Estate (1965) 51 W.W.R. 99 (B.C.C.A.).  The question to be asked in such case is whether the parties were forced into litigation by the conduct of the testator or the conduct of the main beneficiaries.

(emphasis added)

[12]            This question was recently considered in Woodward v. Roberts Estate, 2007 BCSC 1549, a case similar to the instant case, in which the plaintiffs challenged the testator’s capacity to execute the Will in question.  The plaintiffs were unsuccessful but sought an order that the costs of all parties be paid out of the estate.  Madam Justice Gray reviewed the law and, in reaching the ultimate conclusion that the costs would follow the event, made the following apposite remarks:

[12] ... in the recent B.C. cases I have been able to find awarding costs after a challenge to a testator’s testamentary capacity, the usual rule of costs following the event was applied.

[16] The trend towards the general rule that costs should follow the event is likely, in part, a recognition of the significant costs that can be incurred in litigation and that consideration of costs can assist in achieving settlement.  Providing that an unsuccessful party can recover its costs from an estate would discourage that party from taking into account the legal costs of proceeding when considering settlement.  As a result, awarding costs from the estate could encourage probate litigation and discourage settlement.  It would defeat the testator’s intentions to the extent that the costs reduced the size of the estate available for distribution.

[17] As a result, costs should follow the event unless the court orders otherwise, exercising its discretion judicially.

[20] This is not a case requiring construing the terms of a will, where the testator used unclear language that required clarification by the court.  In this case, the testator signed the 2002 Will in the presence of a lawyer, and following two prior meetings with that lawyer.  The only aspect of the testator’s conduct which may have encouraged litigation is that he made two telephone calls after execution of the 2002 Will, in which he suggested that he did not consider the 2002 Will to be in force.  Overall, this is not a case where the parties were forced into litigation by the conduct of the testator.

[21] This proceeding was in substance an adversarial dispute between beneficiaries who would receive more under the 1994 Will and those who would receive more under the 2002 Will.  There is no reason to depart from the general rule that costs follow the event.  The successful defendants are entitled to their costs at Scale B.

(emphasis added)

[13]            Having regard to all the foregoing and the findings at trial, I am satisfied that this is not a case where the plaintiff was forced into litigation by the conduct of the testator or the conduct of the defendant as the main beneficiary.  This proceeding was, in substance, an adversarial dispute between two beneficiaries; accordingly, the usual rule that costs follow the event, applies. 

(ii )  Should the plaintiff be ordered to pay special costs?

[14]            The plaintiff alleged “undue influence” over the testator by the defendant.  The claim was made without a reasonable evidentiary basis.  It was not withdrawn until the commencement of the trial.  “Undue influence” is regarded as a “serious pleading” which must be proved by way of “clear and convincing evidence” (see Huculak v. Smetaniuk Estate, 2005 BCSC 239, at ¶35).

[15]            In this regard I refer to the submission of the defendant with which I entirely agree:

Far from “clear and convincing evidence,” there was no evidence that the defendant had anything to do with the preparation of the Will, let alone any evidence of undue influence.  The plaintiff was unable to raise circumstances that were even remotely suspicious.

The Will was prepared by the lawyer, Mary-Jane Wilson, and her evidence made it clear that she acted solely on the instructions of the deceased, and that he was acting of his own free will.

[16]            Benekritis v. Benekritis Estate, [1998] B.C.J. No. 171 (S.C.) (QL), is a case in which the court awarded special costs in a case where undue influence, inter alia, was alleged in a challenge to the validity of a will, without evidence to support it.  In relation to special costs Madam Justice Stromberg-Stein said:

[54] The Court may order special costs under Rule 57(3).  In Garcia v. Crestbrook Forest Industries Ltd. (1994), 14 C.C.E.L. (2d) 84 (B.C.C.A.) at 91, the Court found the “single standard for the awarding of special costs is that the conduct in question properly be categorized as ‘reprehensible’.”  The Court went on, at 91, to describe the wide meaning that is attributed to the word “reprehensible:”

... the word reprehensible is a word of wide meaning.  It encompasses scandalous or outrageous conduct but it also encompasses milder forms of misconduct deserving of reproof or rebuke.  Accordingly, the standard represented by the word reprehensible, taken in that sense, must represent a general and all-encompassing expression of the applicable standard for the award of special costs.

[55] The conduct to be assessed for special costs is the conduct either in the circumstances giving rise to the cause of action or in the proceedings:  Garcia, at 90.

[56] I am satisfied that the defendants are entitled to special costs having regard to the plaintiff’s unsubstantiated and unfounded allegations of lack of capacity and undue influence.  He will not be permitted to diminish or deplete the estate by his conduct.

[17]            In addition to the baseless allegation of undue influence, the defendant alleges that the plaintiff, in launching a challenge to the validity of the will two-and-a-half years after the grant of probate, had oblique motives, one of which was as an act of retaliation to the defendant’s counterclaim in the Wills Variation action.  The defendant points out that within three weeks of the defendant’s counterclaim, the plaintiff suggested, for the first time, that she would be challenging the validity of the Will.  The defendant also submits that the plaintiff did not pursue the action with an expectation of success, but rather for “collateral benefit” in the Wills Variation action, and that this is borne out in correspondence from the plaintiff.  I am satisfied there is merit to the allegation of oblique motives.  It accounts for the otherwise inexplicable delay in launching a challenge to the Will, and for the relentless pursuit of a futile case whilst a Wills Variation action was outstanding.

[18]            I am satisfied, in light of all the foregoing, that special costs ought to be awarded against the plaintiff.  The plaintiff’s conduct throughout the proceedings was reprehensible in the sense that it is deserving of reproof.  The plaintiff should not be permitted to diminish the estate with the costs of the proceedings challenging the validity of the Will.

F.         Disposition

[19]            The defendant’s application for special costs of the proceedings, to be assessed, is allowed.

“The Honourable Mr. Justice Bernard”