Martin v Hunter, 2021 ABQB 851

Court of Queen’s Bench of Alberta Citation: Martin v Hunter, 2021 ABQB 851 Date: 20211028 Docket: 1901 08593 Registry: Calgary Between: Sheila Christine Martin Plaintiff/applicant - and - Karla Mae Hunter Defendant/respondent _______________________________________________________ Costs Decision of the Honourable Mr. Justice N.E.

Devlin _______________________________________________________ [ 1 ] Marion Hunter (“Marion”) passed away late in her 99 th year, a few weeks after I released judgement in a dispute between her first and second daughters-in-law, regarding the validity of testamentary documents she signed in 2019. In reasons reported at 2021 ABQB 153 , I concluded that Marion lacked the capacity to execute the power of attorney and personal directive that Ms. Martin had arranged for a solicitor to create, and that Ms. Hunter thus remained her personal representative.

The parties have been unable to agree as to costs, requiring this further decision. [ 2 ] The genesis of this litigation lies in the dementia-driven delusions that Marion began to suffer as far back as 2016. Not atypically for individuals in her condition, Marion began to have delusions that included financial exploitation and misdeeds being perpetrated against her. Her caregivers largely dismissed her expressions of these ideations, as they were intimately intertwined with, and contemporary to, other delusions that were unmistakably the product of her dementia rather than actual situations. [ 3 ] Ms.

Martin had been an infrequent figure in Marion’s life for some time, unlike Ms. Hunter who was her day-to-day

caretaker. Consequently, Ms. Martin took Marion’s delusions about Ms. Hunter financially exploiting her at face value. Her inclination to believe these allegations of nefarious conduct against Ms. Hunter were, I found, driven by the pre-existing enmity between these women which, in turn, likely stemmed back as far as Ms. Martin’s contentious divorce from Marion’s son (who went on to marry Ms. Hunter). [ 4 ] Matters between the two women rapidly escalated and came to involve Agecare (the long-term care facility in which Marion spent her final years) as well.

Rather than the issue being resolved by an open and mature conversation, it escalated into litigation and ultimately the somewhat covert creation of the 2019 testamentary documents that were at issue in the trial before me. [ 5 ] After that trial, I found that Ms. Martin had brought the solicitor to Marion primed with the idea that she was the victim of elder abuse by Ms. Hunter. She also withheld from him the fact that Marion was on a secure memory-care ward.

This resulted in the solicitor suffering significant confirmation bias, failing to apprehend that Marion had been declared incompetent, missing numerous red flags about Marion’s capacity, and ultimately executing the documents which I found to be invalid. [ 6 ] All of this took place at a time when Marion’s previous personal directive had been activated by her physicians and Ms. Hunter was acting under a valid power of attorney – facts the solicitor was never made aware of and that Ms.

Martin and her son could scarcely have missed. [ 7 ] It was evident from the materials at trial, and has been reinforced by the submissions respecting costs, that while the root dispute in this case was not particularly complex, the fight over it was quite involved and required extensive steps both in and out of court. As such, the fees incurred by both sides are unsurprising and entirely reasonable. The parties’ positions [ 8 ] Ms. Hunter asks that her costs be paid by Ms. Martin on a substantial indemnity basis.

Specifically, she states that she has incurred legal fees and disbursements in a total approximate amount of $69,000. She submits that Ms. Martin should pay her “at least $40,000 and at most full indemnity in respect of legal fees, disbursements, and GST”, for what she characterizes as a campaign of unwarranted harassment. [ 9 ] She supports this position by arguing that Ms. Martin should have been aware of Marion’s condition given her son’s involvement in Marion’s care conferences, and wilfully remained oblivious to her true condition. She further argues that Ms.

Martin’s remain resolutely unwilling to consider facts contrary to her view of the matter, unnecessarily elevated the conflict, and continued to “act on her own uneducated and uninformed opinion, causing great disruption and expense in both time and money for Marion Hunter, Ms. Hunter, [and] Agecare”. [ 10 ] Ms. Hunter notes that Agecare and Marion’s physician went so far as to create a plan to deal with the agitated state that Ms. Martin’s visits would frequently provoke in her. I take their arguments to be that this demonstrates that Ms. Martin was not acting in Marion’s best interests. [ 11 ] For her part, Ms.

Martin indicates that she has incurred legal fees of approximately $73,000 in respect of this litigation and that an equitable disposition would be the awarding of $25,000 to each of her and Ms. Hunter from the estate. I note that the submissions were made prior to Marion’s passing. She notes that Ms. Hunter took steps and positions which prolonged the matter and was non- compliant with various procedural orders. She argues that is was reasonable for her to act on the concerns Marion voiced and rely on the lawyer and subsequent capacity assessment that found Marion competent to have executed the 2019 documents.

Applicable legal principles [ 12 ] C osts in estate litigation are subject to the general rule that the successful party is entitled to recover costs from the unsuccessful party: see Goold Estate v Ashton , 2017 ABCA 315 at para 3 ; Neufeld Estate (Re) , 2017 ABQB 802 at para 5 , affirmed 2019 ABCA 33 at para 13 ; Kachur Estate (Re) , 2017 ABQB 786 at para 140 ; and Schell Estate , 2018 ABQB 991 at paras 96-98 . [ 13 ] As in all costs decisions, the Court has a broad discretion to award costs in the manner that is most equitable and in keeping with the statutory and public policy purposes at play in the matter: Schwartz Estate v Kwinter , 2013 ABQB 147 at para 197 .

This discretion is reinforced by Surrogate Rule 64(1), which provides, inter alia , that the Court has authority to: (

h) order costs to be paid from the estate or by any person who is a party to the application; (

i) make any order that the court considers necessary in the circumstances. [ 14 ] As Justice Graesser concluded in Schwartz Estate at para 113 : in estate litigation, I have no doubt that the so-called “modern rule” applies, such that costs in estate litigation are now to be treated in a similar fashion to costs in other civil litigation. The old starting point that the estate should bear the costs of litigation has been replaced with the principle that the parties will normally bear costs as they would in other types of civil litigation, unless the challenge to the will or estate was reasonable, even though eventually unsuccessful . [emphasis added] [ 15 ] This approach is confirmed by

Section 90 (

h) of the Surrogate Rules , which allows the Court to award punitive costs against an applicant seeking formal proof of a will if the application was frivolous or vexatious, caused undue delay, or the application lacked a substantial basis. [ 16 ] In this case, the testamentary documents at issue were produced at Ms. Martin’s behest, and she is not, per se , a challenger to

Marion’s testamentary wishes. However, her actions in bringing in a solicitor to draft a new power of attorney removing Ms. Hunter’s authority was, in effect, a challenge to Ms. Hunter’s subsisting status as Marion’s personal representative. Therefore, the principles governing challenges to testamentary instruments govern by analogy, insofar as this Costs Decision should consider the extent to which Ms. Martin’s actions, purportedly in defence of Marion’s interests and true wishes, were reasonable. Application to this case [ 17 ] At trial I found that Ms.

Martin’s initial suspicions and concerns had a factual basis in Marion’s statements to her and her son. It is reasonable that an interested person, be it a friend or relative, act upon concerns of financial elder abuse. This Court should be loath to penalize good-faith actions taken to ensure that vulnerable elders are not being exploited, through the award of costs when those actions reasonably necessitate ultimately unsuccessful legal action. [ 18 ] That said, a point came fairly early in this situation where Ms. Martin should have been aware that Marion was in fact delusional and of limited capacity.

Her hostility and intransigent attitude of disbelief towards the indisputable evidence of this – mostly recorded by Marion’s faithful and diligent caregivers and physician – colour her actions as not entirely reasonable. That the situation was exacerbated by her pre-existing ill-will towards Ms. Hunter.

While that sort of discord is not uncommon disputed estate situations, lingering distrust and dislikes are not a justification for vigorous and unnecessary litigation. [ 19 ] In the unique circumstances of this case, I find that Marion’s early phase of decline, and the statements she was prone to make during it, were the original source of the problem. These justified Ms. Martin taking certain initial steps. Both Ms. Hunter and Ms. Martin will therefore be entitled to $15,000 from the estate towards their costs. Moreover, the costs of Dr.

Patchett’s report will be paid from the estate if they have not already been. [ 20 ] There came a point in this litigation, however, where Ms. Martin’s attempts to depose Ms. Hunter as the personal representative, and thus functionally countermand Marion’s valid wishes, became unreasonable and motivated by concerns other than Marion’s financial safety and well-being. I find that an award of costs against Ms. Martin is appropriate, on a partial indemnity basis for a majority of the costs incurred. [ 21 ] That said, Ms.

Hunter’s conduct in the litigation has also not been spotless, though of the offers to settle, or near-offers, I find hers to be the more sincere and meaningful. Overall, it is appropriate, however, that Ms. Hunter not receive full indemnity costs. [ 22 ] Therefore, in the exercise of my discretion, I award her a further $35,000 payable by Ms. Martin. Dated at the City of Calgary, Alberta this 28 th day of October, 2021. N.E. Devlin J.C.Q.B.A. Appearances: Predrag Tomic and Chloe Mathioudakis for the Plaintiff/Applicant Patrick Mahoney for the Defendant/Respondent