Henderson (Re), 2021 ABQB 661

Court of Queen’s Bench of Alberta Citation: Henderson (Re), 2021 ABQB 661 Date: 20210818 Docket: ES12 36509 Registry: Wetaskiwin Court File Number ES12 36509 Court Court of Queen’s Bench of Alberta (Surrogate Matter) Judicial Centre Wetaskiwin Estate Name Allen S. Henderson Applicant (Plaintiff) Marilyn Henderson Respondents (Defendants) Travis Henderson and Lorraine Henderson _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice Sterling M.

Sanderman _______________________________________________________ [ 1 ] Marilyn Henderson (MH) has been involved in litigation with Travis Henderson (TH), Lorraine Henderson (LH) and Tanya Henderson in relation to the estate of Allen Henderson (AH) since AH’s untimely death in the fall of 2016. A number of court applications have been made between March of 2020 and May 19, 2021. MH has been successful in her legal endeavours. The litigation continues but at this time MH seeks costs for this period. [ 2 ] As a general rule the successful party in estate matters is entitled to costs.

Depending on the circumstances and complexity of the litigation, a variety of cost options are open to the Court. MH argues that full indemnity or solicitor-client costs are warranted in this case. Exceptional circumstances need be present before a court would contemplate such an award.

Consequently, MH suggests alternative cost awards if this approach is rejected. [ 3 ] The Respondents oppose any costs award in favor of MH and suggest that the parties should bear their own costs, but argue that they are entitled to have their costs paid from the estate as they argue that the actions of the Testator (AH) are responsible for the ongoing litigation. [ 4 ] Rule 10.33 of the Alberta Rules of Court outlines the factors a court should consider in making a costs award. It states:

10.33(1) In making a costs award, the Court may consider all or any of the following: (

a) the result of the action and the degree of success of each party; (

b) the amount claimed and the amount recovered; (

c) the importance of the issues; (

d) the complexity of the action; (

e) the apportionment of liability; (

f) the conduct of a party that tended to shorten the action; (

g) any other matter related to the question of reasonable and proper costs that the Court considers appropriate.

(2) In deciding whether to impose, deny or vary an amount in a costs award, the Court may consider all or any of the following: (

a) the conduct of a party that was unnecessary or that unnecessarily lengthened or delayed the action or any stage or step of the action; (

b) a party's denial of or refusal to admit anything that should have been admitted; (

c) whether a party started separate actions for claims that should have been filed in one action or whether a party unnecessarily separated that party's defence from that of another party; (

d) whether any application, proceeding or step in an action was unnecessary, improper or a mistake; (

e) an irregularity in a commencement document, pleading, affidavit, notice, prescribed form or document; (

f) a contravention of or non-compliance with these rules or an order; (

g) whether a party has engaged in misconduct; (

h) any offer of settlement made, regardless of whether or not the offer of settlement complies with

Part 4 [Managing Litigation], Division 5 [Settlement Using Court Process]. [ 5 ] In this application some of these factors apply; most do not. [ 6 ] MH’s position is straight forward. She claims that she has attempted to resolve the outstanding issues between the parties and has done everything within her power to avoid litigation. MH’s account of her efforts to co-operate fully with the Respondents as set out in paragraphs three and four of her initial brief is accurate.

She has attempted to bypass court appearances whenever possible. [ 7 ] MH contends that TH and LH intentionally prolonged the litigation and made it more complicated than necessary in order to preserve the preferred position they had in possessing and controlling the estate property for their own use for over four years. As long as they could use the estate property for their own purposes without having to account for their actions they had no desire to co-operate with MH to bring this matter to any resolution.

MH suggests that they adopted a calculated approach to this matter that was designed to delay and frustrate MH’s legitimate application for probate. [ 8 ] MH points out that she has been successful at every turn and the Court ordered in 2021 what she asked for three years earlier.

She suggests that a significant costs award is appropriate having regard to the tactics employed by the Respondents to frustrate her attempt to have probate granted to her. [ 9 ] A review of the record of proceedings up to May 19, 2021, is supportive of her position. [ 10 ] TH and LH assert that they are entitled to costs from the estate because the litigation between the parties was necessary in order to clarify the Testator’s true wishes.

They claim that this is one of those exceptional cases where the estate should pay costs because the actions of the Testator created the legal problem that had to be resolved. [ 11 ] I reject this argument. AH prepared two holographic wills months apart that are clear in the bequests they make. There is no ambiguity in what they say. The fact that the latter will is challenged by TH and LH does not lay fault at the door of the Testator thereby making a costs award from the estate appropriate. [ 12 ] TH and LH also allege litigation misconduct on the part of MH which entitles them to a costs award.

I reject this argument. There is no evidence of this other than a bold assertion of wrongdoing by TH and LH which is vehemently denied by MH. [ 13 ] There is considerable innuendo suggesting wrongdoing in the argument advanced by TH and LH. Unfortunately, there is little detail outlining the alleged wrongdoing. The suggestions being made have little probative value. In the record of this matter for the time frame being considered, there is not an evidentiary basis upon which one could come to this conclusion.

This argument is rejected. [ 14 ] On this application, the Respondents have spent considerable time re-arguing matters decided by the Court in favor of MH. The matters of capacity, undue influence, and the last holographic will not being in the Testator’s handwriting formed the basis for TH and LH opposing MH’s application for probate first launched in 2017. The evidence the parties placed before the Court resulted in probate being granted to MH as she satisfied the Court on a balance of probabilities that the last will is in AH’s handwriting and at the

time he prepared it, he had the requisite capacity and was not subject to undue influence. [ 15 ] MH has been successful in obtaining probate and resisting a number of attacks upon her efforts to do so. She has not engaged in litigation misconduct. There is no basis for awarding costs to the Respondents either from MH or the estate. TH and LH have embarked on a litigation strategy meant to frustrate the Applicant and delay matters. [ 16 ] MH is entitled to costs but not full indemnity or solicitor-client costs. [ 17 ] She is entitled to party-party costs based on

Schedule C, Column 5 with a multiplier of 1.75. Written briefs filed in June 2021. Dated at the City of Wetaskiwin, Alberta this 18 th day of August, 2021. Sterling M. Sanderman J.C.Q.B.A. Appearances: Chaylene L Gallagher, Bryan & Co. for the Applicant Grant R Vipond, Vipond Law Firm for the Respondents