2020 NSSC 48, 2020 NSSC 48

SUPREME COURT OF NOVA SCOTIA Citation : Bowman Estate (Re) , 2020 NSSC 48 Date: 20200203 Hfx No. 495437 Hfx No. 465247 Probate Court No. 64486(

H) Halifax BETWEEN : Brooke Lillian Bowman Applicant -and- Estate of Brian Keith Bowman, Deceased and Karen Diane Hill, Personal Representative Respondents COSTS DECISION BEFORE: Justice Gregory M. Warner HEARD: December 9 th and 10 th , 2019 PLACE: Halifax, Nova Scotia FINAL COST SUBMISSIONS: January 13, 2020 COUNSEL: Donald C. Murray, Q.C for the Applicant Brooke Bowman Michael A. Levin, for the Respondent Karen Diane Hill BACKGROUND [ 1 ] Brian Bowman a long time Toronto police officer retired and returned to Nova Scotia in March 2016. He was separated from his spouse and in the midst of a divorce proceeding.

In early June 2016 he was hospitalized and diagnosed with cancer. While hospitalized he interviewed lawyer Jeanne Desveaux and on July 4, 2016 executed a will naming his mother, Diane Hill, as executrix, his then twenty-year-old daughter and only child, Brooke Bowman as alternative executor. The Will left all of his estate, subject to debts, to his daughter and included as paragraph six, a designation of his daughter as the beneficiary under all life insurance policies and pension plan survivor benefits. [ 2 ] On August 14 th , 2016, Mr.

Bowman signed minutes of settlement with his spouse, which minutes were incorporated in a divorce judgment issued August 8, 2016.

[ 3 ] In late August 2016, Mr. Bowman signed beneficiary designation forms changing the beneficiary of his four life insurance policies, in the amount of about $170,000.00 to his mother, Ms. Hill. On September 14, 2016, he signed, without legal advice, a one sentence codicil to his Will prepared by Ms. Hill that deleted paragraph six of his July 4 th , 2016 Will: “As I have named my mother, Karen Diane Bowman Hill, beneficiary of all my insurance policies”. [ 4 ] Brian Bowman died on January 22 nd , 2017. [ 5 ] Following his death, Ms.

Hill applied for and was paid two of the life insurance polices, in the amount of $48,368.00. A six- thousand-dollar policy was paid into her lawyers’ trust account and the insurer on the fourth policy paid the proceedings into Court in the amount of$118,000.00. [ 6 ] For some time after Mr. Bowman’s death Ms. Hill did not apply for a grant of probate for the Will and Codicil. On November 21 st , 2017, Ms. Bowman filed an application for production of the Will and Codicil and for Ms. Hill to seek a grant of probate or renounce as Executrix. [ 7 ] On January 26, 2018, Ms.

Hill applied for probate of the Will and Codicil. The application showed the value of the Estate to be $1400.00 in personal property. [ 8 ] On August 8 th , 2018, Ms. Bowman applied for the following relief: a. Proof and solemn form of the Will and Codicil; b. Removal of Ms. Hill as Executrix; c. Appointment of herself as Executrix; d. A declaration that the beneficiary designation forms in favor of Ms. Hill were invalid. [ 9 ] The Court heard the application on December 9 th and 10 th , 2019.

It became apparent during the hearing that the jurisdiction to hear and determine the issue of the insurance beneficiary designations in favor of Ms. Hill lay only in the Supreme Court. For the sake of efficiency and to avoid possible conflicting decisions in two proceedings, the parties agreed that the hearing would proceed on the basis that the Applicant would file, before an order was issued, an application in the Supreme Court seeking the determination of the issues with respect to the validity of the insurance beneficiary designations in favor of Ms. Hill.

This hearing would determine both applications. [ 10 ] On December 10 th , 2019, the Court determined that the July 4 th , 2016 Will was proven and valid; that the Codicil and insurance beneficiary designation in favor of Ms. Hill were invalid and void. By reason of Mr. Bowman’s physical and medical condition, he was vulnerable to undue influence of Ms. Hill, and the Court determined that the Codicil and the beneficiary designations in favor of Ms. Hill were the product of undue influence or alternatively deceit by Ms. Hill as to the purpose of the Codicil and designations.

Based on the evidence I accepted, I found that Mr. Bowman, the testator, both before and after the purported Codicil and beneficiary designations in favor of Ms. Hill intended and believed that his daughter, Brooke Bowman, would be the sole beneficiary of his Estate, including his life insurance policies. I found that Ms. Hill acted dishonestly in her dealing with the testator and his Estate, and I rejected her evidence. COST SUBMISSIONS [ 11 ] Ms. Bowman submits that: 1. She is entitled to her costs to be paid personally by Ms. Hill. 2.

The costs should be paid on Tariff “A” Scale 3 with an amount involved between $150,000 and $200,000. 3. Costs shall recognize the hearing took 2 Court days. 4. She is entitled to her reasonable disbursements. 5. Ms. Hill is not entitled to payment of any costs and disbursements related to this litigation from the Estate. [ 12 ] In support of this submission, she cites Keddy v. Keddy Estate 2016 NSSC 194 and refers the Court to Civil Procedure Rule 77, and Probate Act

section 92. Respecting CPR 77, she highlights Rule77.02 that costs are to do justice between the parties, 77.03(3) that costs follow the result, Rule 77.06 that application costs are assessed per Tariff “A” as if the hearing was a trial, 77.07 that the conduct of the party is a relevant consideration ( Kozak Estate , 2018 ABQB 272 ), and 77.13 that Counsel is entitled to reasonable compensation. (The Court notes that Rule 77.13 applies to taxation of costs as of between a client and solicitor, not to party and party costs.) [ 13 ] Respecting the Probate Act,

Section 92, the Applicant notes that costs in contested matters may be ordered against the losing party or against the estate, or if the personal representative is a party, against the personal representative. [ 14 ] Respecting CPR77.18 Tariff “A”, she submits that including the life insurance policies paid by the beneficiary designation forms, the Estate’s value is appropriate $177,000.00. Tariff “A” provides for legal costs on Scale two (Basic) of $16,750 and Scale three of $20,938 plus $2,000.00 per day for two days of hearing time. [ 15 ] Ms. Bowman submits that by reason of the misconduct of Ms. Hill, Ms. Hill is entitled to no costs against the Estate. She cited three trial decisions.

[ 16 ] She submits that Ms. Bowman should have costs against Ms. Hill; to do otherwise would mean that Ms. Bowman would be paying her own costs as she is the sole beneficiary of the Estate. [ 17 ] She submits that her costs against Ms. Hill personally should be on Tariff “A” Scale three for $24,938.00 plus reasonable disbursements. She acknowledges that while the Court observed that it appeared that Ms.

Hill was not a person of substantial means, the conduct she chose to follow to enrich herself in defiance of the testator’s wishes mean that her own poor financial position should be of no concern to the Court. [ 18 ] Finally, she recites the exchange of offers between the parties to settle this matter, all of which were less advantageous to Ms. Bowman than the Court’s decision. The four offers were as follows: [ 19 ] On October 17, 2017, Ms. Hill made an offer directly to Ms. Bowman in the amount of $25,000.00 from the Estate, contingent upon the Estate reaching an agreement with Mr. Bowman’s Toronto lawyer (Ms.

Road) who had filed a claim against the Estate for about $31,000.00. This offer was not accepted. [ 20 ] On November 10 th , 2017, Ms. Bowman made formal CPR 10.06 offer to settle on the basis that Ms. Hill would receive $35,000.00 plus executrix’s costs out of the Estate. The offer was not accepted. [ 21 ] On January 11, 2018, Ms. Hill through counsel proposed that, contingent upon a full release of any other claim by Ms. Bowman and other contingencies, Ms. Hill and Ms.

Bowman share one half of the two insurance policies proceeds that had been paid into her lawyer’s account and into Court (about $124,000.00) less all Estate costs and legal fees including the release of Ms. Roads’ legal claim and any other proven Estate claims such as Canada Revenue Agency claims. [ 22 ] On December 9 th , 2019, Ms. Bowman’s Counsel made a proposal to Ms. Hill’s Counsel during the hearing as follows: “We are prepared to accept as full and final settlement receipt of the funds currently held in court, and the funds currently held at your firm. Each party bears their own costs.

Brook will discharge the Road account. The funds that Diane has already distributed remain as she has done.” [ 23 ] The Respondent’s January 13 th , 2020 brief makes four points: a. Litigation was necessary to resolve this matter. b. Litigation arose from the conduct of the deceased. c. The Executrix has a duty to defend the Will. d. Costs and disbursements of this litigation are distinct from estate administration. [ 24 ] She distinguishes this case from the Wittenberg Estate , 2015 NSCA 79 factual matrix and other frivolous or vexatious litigation in which the Court found the loser personally liable for costs.

She submits this case contained valid, triable, factual issues. Both parties advanced compelling evidence and took plausible positions. [ 25 ] The crucial Court finding was the Court’s reliance and acceptance of the affidavit evidence of two Toronto police officers and friends of Mr. Bowman, who attended the Court hearing for cross examination but were not cross examined, over the affidavit evidence of Ms. Corkum who witnessed the codicil and beneficiary designation forms in favor of Ms.Hill, who the Applicant did not cross examine. [ 26 ] The brief distinguishes this case from Keddy .

In Keddy I had stated that “this case was without merit”. [ 27 ] Secondly, Ms. Hill submits that unlike Keddy , this litigation was a product, in no small part, of the actions of the testator. He signed the Codicil and beneficiary designation forms. He was an articulate person with the mental capacity to read and understand what he signed. Ms. Hill refers the Court to Justice Bryson’s statement at paragraph 17 in Prevost v. Prevost Estate 2013 NSCA 20 .

She submits that in contrast to the matrix in Kozak Estate , where an elderly bachelor was duped by a younger woman’s promise of companionship, Brian Bowman was dying and had no expectations of anything in return from his mother. [ 28 ] Thirdly, Ms. Hill submits that as Executrix, she had a duty to defend not only the Will but the Codicil and beneficiary designation forms. [ 29 ] Fourthly, because Ms.

Hill was appointed Executrix under the July 4, 2016 Will and was ordered to be removed as Executrix by the Court in this proceeding but subject to providing a final accounting, and because she will incur legal expenses and disbursements to continue administration of the Estate, the order on costs should allow for payment of her estate administration and probate costs. ANALYSIS AND DECISION [ 30 ] It appears not to be in issue that: a. Ms. Hill is not entitled to payment of any costs or disbursements related to this litigation, and b. Ms.

Bowman is entitled to costs of her application on the basis of Tariff “A” and that Tariff “A” will include a two-day hearing and that the “amount involved” is between $125,000 and $200,000. [ 31 ] The contested issues appear to be: a. On what Scale in Tariff “A” – 2 Basic or Scale 3, should the applicant’s costs be assessed?

b. Whether the Estate or Ms. Hill should be liable for the Applicant’s costs? c. What costs and fees, if any, is Ms. Hill entitled to in respect of her duties as Executrix and her obligation to provide an accountingas a condition of the Court’s discharge of her as Executrix of the Estate and replacement with the Applicant. FIRST ISSUE – PROPER SCALE [32] With respect to the first contested issue, CPR 77.06(2) provides that costs of an Application in Court are to be assessed inaccordance with Tariff “A”. The starting point for Tariff “A” is Scale 2.

The onus is on the Applicant to establish that there was agreater than normal complexity to the Application to justify costs of greater than the normal costs of such an application. [33] The law in this particular application was not complex. Both pre-trial briefs together totalled only 61 pages. The Applicantfiled 10 affidavits containing in total 248 paragraphs and the Respondent filed three affidavits containing 76 paragraphs in total. Theprimary issue before the Court was the assessment of credibility and reliability.

The Application was scheduled for three days but wascompleted, including an oral decision, in two days. Most affiants were not cross-examined. [34] Subject to any other adjustments, the appropriate scale in this matter is Scale 2, the basic and normal scale. Tariff “A” costs areassessed therefore at $16,750 plus $2,000 per day for two days for a total of $20,750. [35] In addition, the Applicant is entitled to some reasonable disbursements. I agree with Ms. Hill’s submission that absent theRespondent giving notice under the Civil Procedure Rules requiring the attendance for cross examination of Ms. Desveaux, Ms.

Taylorand Mr. Bock, no disbursements related to their attendance would be reasonable. That is not to say that the failure to cross-examine thesewitnesses was central to the outcome. [36] The Court has reviewed four offers to settle including one formal offer under CPR 10. I conclude that the Respondent’s offersto settle were not reasonable. I conclude that the Applicant’s offers to settle were reasonable in the circumstances and were much morefavorable to the Respondent than the Court’s final decision. This is particularly so in light of Ms. Taylor’s and Mr.

Bock’s affidavitsfiled on February 15, 2019, which affiants the Respondent declined to cross-examine. [37] But for my observations during submissions that Ms. Hill appears not to be a person of substance and appears to have receivedand distributed or spent the approximately $47,000.00 she received from two of the life insurance policies, I would have consideredeither (

a) increasing Tariff “A” costs pursuant to CPR 10.09 (determining costs of formal offer not accepted), or (

b) substituting a lumpsum award based on Ms. Hill’s conduct, both before and after Mr. Bowman’s death. In the circumstances, I decline to do either. SECOND ISSUE – WHO SHOULD PAY [38] The effect of Ms. Hill’s submission that Ms. Bowman’s costs should be paid from the Estate is effectively a submission that Ms.Bowman should pay her own costs. Said differently, Ms. Hill claims an entitlement to a free kick at keeping some of the insuranceproceedings that she diverted from Ms. Bowman by what I find to have been deception and an abuse of her relationship with the Testatorduring his lifetime. [39] Neither Ms.

Bowman nor the Estate lost this Application. Ms. Hill lost in three ways: first, the determination that the Codiciland Beneficiary Designations were obtained by undue influence or deceit; second, that Ms. Hill abused her relationship with the Testatorwhen he was vulnerable and depended on her by reason of his dire medical situation; and third,, Ms. Hill failed to carry out her duties in aprompt and proper manner as the Executrix under the July 4, 2016 Will. [40] In Keddy at paragraph 35, I wrote: a. “This case was with merit.

This case is distinguishable from estate litigation that arises less by greed and more by a legitimateinquiry into the words and intent of a testator.” [41] Contrary to Ms. Hill’s submissions, this litigation did not arise out of legitimate inquiry into the words and intent of a testator,rather they are a result of Ms. Hill’s greed and deception. [42] Based on the totality of the evidence and the application of common sense to that evidence (or as stated in Faryna v.

Chorny, (BC CA), 1951 Carswell BC 133 – “The preponderance of probabilities which a practical and informed person wouldreadily recognize as reasonable in that place and in those circumstances”), I concluded that Ms.

Hill either deceived the Testator orexercised undue influence to undermine the Testator’s clear intentions expressed to the only independent witnesses (who had norelationship with anyone involve in this proceeding other than the Testator) which intentions were expressed by the Testator both beforeand after the Codicil and Beneficiary Designations were executed by him. [43] The Court’s encouragement to the Parties to resolve the matter on the basis of what they can live with not what each wanted(which the Applicant’s brief described as “exhortations”) should not have been interpreted by Ms.

Hill as suggesting that she had alegitimate and reasonable prospect of success, especially without a very effective cross examination of Ms. Taylor and Mr. Bock whomshe declined the opportunity to cross examine. [44] Ms. Hill contested Ms. Bowman’s Application and lost. It would not do justice between parties for Ms. Bowman to pay herown costs and Ms. Hill have a free kick at defending a clear abuse of her relationship with the Testator. Ms. Bowman shall have costsagainst Ms. Hill in the amount of $20,750 and reasonable disbursements on a party and party basis. THIRD ISSUE [45] Ms.

Hill submits as Executrix she is entitled to costs of administration of the Estate and producing the accounting that the Courtdirected her to make in connection with the Court’s removal of her as Executrix.

[ 46 ] Her misconduct before Mr. Bowman’s death and her obstruction of the efficient administration of the Estate after his death disentitled her to any costs. [ 47 ] She has already taken the proceeds of two life insurance policies, approximately $47,000.00. It will likely be expensive if at all practical, to get recovery of the full amount that she took and disbursed improperly. [ 48 ] Ms. Hill’s obligation to provide an accounting to the Court was part of the Court’s order that she be removed as Executrix. It should be without any costs to the Estate and indirectly to the Applicant. _________________________________ Warner, J