SHAYNE ALLEN TROTTIER, as Administrator of the Estate of Roy Phillipe Joseph Trottier APPLICANT - v. -, 2015 SKQB 228

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2015 SKQB 228 Date: 201 5 07 29 Docket: QBS 26 of 2014 Judicial Centre: Moose Jaw BETWEEN: SHAYNE ALLEN TROTTIER, as Administrator of the Estate of Roy Phillipe Joseph Trottier APPLICANT - and - PAULETTE TROTTIER and DAWN RHEA SANTIAGO RESPONDENTS Counsel: Jacob Watters for Shayne Trottier, Administrator of the Estate of Roy Phillipe Joseph Trottier Kenneth Cornea for Paulette Trottier Clayton Barry for Dawn Rhea Santiago JUDGMENT SCHWANN J. July 29, 2015 [ 1 ] There are two applications before this Court.

Both concern the validity of the Last Will and Testament of Roy Phillipe Joseph Trottier, executed by him on August 13, 1998. [ 2 ] Shayne Allen Trottier applies pursuant to s. 46.4 of The Administration of Estates Act , SS 1998, c A-4.1 in his capacity as the administrator of the Roy Trottier estate for the opinion, advice, and direction of this Court with regard to a will purportedly executed by Roy Trottier in 1998, and specifically whether the 1998 will was revoked by operation of s. 17 of The Wills Act, 1996 , SS

1996, c W-14.1. [ 3 ] A second application is brought by Dawn Rhea Santiago. She seeks a declaration that: 1) Roy’s 1998 will is valid and binding, and should be submitted for probate, and 2) Roy Trottier’s estate is not an intestacy. [ 4 ] Both applications invite consideration as to whether a viva voce hearing is necessary to determine the issues, and whether costs should be assessed against Paulette Marie Trottier. BACKGROUND [ 5 ] Roy Phillipe Joseph Trottier died on September 17, 2012, at the age of 66 years.

He was survived by two children from his first marriage: Shayne and Dawn. [ 6 ] Roy was also survived by his wife, Paulette Marie Trottier. Roy and Paulette began a dating relationship in 1997 and commenced cohabitation in either August or September of 1998. From that time onwards, Roy and Paulette continuously cohabited together until Roy’s passing in 2012. Roy and Paulette were married on August 26, 2012, several weeks before his death. [ 7 ] Roy executed a will on December 8, 1997 [1997 will].

Shayne and Dawn were appointed co-executors of his estate and were the beneficiaries of the residue of the estate in equal shares. Dawn was appointed as Roy’s power of attorney at the same time as the 1997 will. [ 8 ] Roy subsequently executed another will on August 13, 1998 [1998 will]. Again, Shayne and Dawn were appointed as executors of Roy’s estate, and again they were named as beneficiaries. On this occasion, however, Shayne and Dawn were not the sole beneficiaries of Roy’s estate.

Paulette was to receive Roy’s cabin at Buffalo Pound Lake, the furniture and contents contained in Roy’s Moose Jaw home, and two Yorkshire Terrier dogs. [ 9 ] Roy made no further will following his 1998 will. [ 10 ] As mentioned, Roy died on September 17, 2012. A number of court applications and other proceedings ensued following Roy’s death. [ 11 ] The first was an application brought by Paulette to be appointed as administrator of Roy’s estate based on her assertion that Roy died intestate.

When it became clear to Paulette that she would be unable to obtain a bond and that Shayne would not consent to her appointment without a bond, Paulette applied pursuant to ss. 33(1) (

b) of The Queen’s Bench Act, 1998 , SS 1998, c Q-1.01 for an order appointing Shayne as the administrator ad litem of Roy’s estate. An order to that effect was granted by this Court on January 14, 2014, appointing Shayne as the representative of Roy’s estate so that Paulette could proceed with her family law proceedings. [ 12 ] In an affidavit filed by Shayne in response to Paulette’s application, Shayne identified the 1997 will.

Paulette made no reference to the 1998 will in her court materials. [ 13 ] Soon after the January 14, 2014 order was granted, Paulette commenced legal proceedings against the estate under The Family Property Act , SS 1997, c F-6.3, The Family Maintenance Act, 1997 , SS 1997, c F-6.2, The Intestate Succession Act, 1996 , SS 1996, c I-13.1 and The Dependent’s Relief Act, 1996 , SS 1996, c D-25.01 [family law proceedings].

Paulette’s petition was followed by an interim application for spousal support and interim distribution of family property. [ 14 ] Within weeks of Paulette’s family law application, Shayne applied on an ex parte basis for letters of administration. Letters were granted on February 19, 2014. Shayne proceeded with this application on the footing that the 1997 will was Roy’s only will, and that Roy’s subsequent marriage to Paulette in 2012 revoked the 1997 will. At para. 2 of Shayne’s affidavit, he states: 2.

I have made a careful search in all places where the deceased usually kept papers, and had depositories, and I believe the deceased died without having left any will, codicil, or testamentary document whatsoever, save and except for a Last Will and Testament dated December 8, 1997 subsequent to which the deceased cohabited in a spousal relationship with Paulette Marie Trottier and was married to Paulette Marie Trottier on August 26, 2012. … [ 15 ] Paulette executed a renunciation of administration and consented to Shayne’s appointment as administrator of Roy’s estate without bond.

Again, Paulette took no steps to advise Shayne of the existence of the 1998 will. [ 16 ] The only other court proceeding pre-dating the two applications presently before this Court was an application brought by Dawn for an order entitling her to be heard in Paulette’s family law proceedings. That order was granted on March 17, 2014. [ 17 ] It is uncontested that neither Shayne or Dawn was aware of the existence of the 1998 will when Shayne applied for letters of administration based on what he believed was an intestacy.

Shayne filed an affidavit in these proceedings indicating that he spoke with his father’s long time Moose Jaw lawyer shortly after Roy’s death and was left with the impression that the 1997 will was his father’s most recent will. The lawyer did not suggest otherwise nor did he advise Shayne of the existence of the 1998 will. Dawn also contacted her father’s Moose Jaw legal counsel regarding her father’s estate following his passing.

She, too, was left with a similar understanding. [ 18 ] It is also uncontested that Paulette and her legal counsel were in possession of a copy of Roy’s 1998 will as early as November 2012, and certainly prior to Shayne’s application for letters of administration. In an affidavit sworn on April 7, 2015, Paulette deposed to the following: 2.

That the original Last Will and Testament of Roy Phillipe Joseph Trottier that is dated the 13 th day of August, 1998, was never in my possession or control and it is my understanding based on the information contained in correspondence from Leonard Curran’s office that the original was following execution left with Mr. Curran presumably for safe keeping by the Deceased.

3. The only information I have in connection with this Will is that what appeared to be a photocopy of the same was found by me following Roy’s death and I believe after both the Applicant, Shayne Allen Trottier, and the Respondent, Dawn Rhea Santiago, had been in contact with Mr. Curran’s office to discuss matters in connection with their father’s estate. [ 19 ] In spite of Paulette’s knowledge of the 1998 will, she took no steps to inform Shayne or Dawn of its existence.

As reflected in para. 3 of her affidavit, Paulette believed Shayne and Dawn had been in contact with Roy’s legal counsel to discuss matters in relation to his estate. She offers nothing more. [ 20 ] Shayne or Dawn only became aware of the 1998 will in late December 2014 when Paulette filed an affidavit of documents in her family law proceedings. [ 21 ] After the existence of a 1998 will came to light, Shayne again contacted his father’s legal counsel, but this time the original 1998 will was located. ISSUES [ 22 ] The applications give rise to the following issues: a.

Can this application be determined on the basis of affidavit evidence or is viva voce evidence required in order to determine the validity of the 1998 will? b. Was the 1998 will revoked after Roy and Paulette had cohabited continuously in a spousal relationship for two years or more? c. Was the 1998 will revoked by the marriage of Roy and Paulette in August 2012? d. Is Dawn entitled to solicitor-client costs? LEGISLATION [ 23 ] Although the precise date Roy and Paulette commenced living together is unclear, the parties generally agree that it was in either August or September 1998.

There is no disagreement amongst the parties that after the execution of his 1998 will, Roy and Paulette cohabited continuously together as spouses for a period of more than two years and that the two year anniversary date of their cohabitation together occurred in August or September of 2000.

As mentioned, Roy and Paulette were married on August 26, 2012. [ 24 ] These applications concern whether Roy and Paulette’s circumstances brought about a deemed revocation of Roy’s 1998 will, and more specifically, whether the provisions of the present law with respect to revocation of wills affects Roy’s 1998 will. [ 25 ] The analysis, however, must begin with the provisions of The Wills Act, 1996 in force in 2000 dealing with deemed revocation of wills.

Section 17 provided: 17 A will is revoked by the marriage of the testator except where: (

a) there is a declaration in the will that it is made in contemplation of the marriage; or (

b) the will is made in exercise of a power of appointment of real or personal property that would not in default of the appointment pass to the heir, executor or administrator of the testator or to the persons entitled to the estate of the testator if he or she died intestate. [ 26 ] Thus, the state of the law in 2000 was that a marriage after a will was made had the effect of revoking a prior will unless the will was made in contemplation of that marriage.

The fact a couple resided in a spousal or common law relationship had no effect on the will. “ The purpose of s. 17 was not to force people to provide for their spouses (that is a matter of choice) but rather to ensure a spouse was not left out of the will because the marriage was not contemplated at the time the will was made .” ( Bernesky v Smith , 2003 SKQB 96 , para 17 [ Bernesky ] ) [ 27 ] In response to several notable Canadian Charter of Rights and Freedoms [ Charter ] decisions involving common law and same sex couples, the Saskatchewan legislature enacted The Miscellaneous Statutes (Domestic Relations) Amendment Act, 2001 , SS 2001, c 50 and The Miscellaneous Statutes (Domestic Relations) Amendment Act, 2001 (No. 2) , SS 2001, c 51 [ MSAA (No. 2) ].

These omnibus bills amended several pieces of provincial legislation, including s. 17 of The Wills Act, 1996 . [ 28 ] With regard to amendments to The Wills Act, 1996 , the Minister of Justice stated : “The provisions in The Wills Act, 1996 that states that a will is revoked by a marriage is extended to revoke a will when the maker has cohabited in a spousal relationship for two years.” (Saskatchewan Legislative Assembly, Debates and Proceedings (Hansard) , 24 th Leg, 2d Sess (4 June 2001) at 1563 (Mr. Axworthy)) [ 29 ]

Section 10 of the MSAA (No. 2) repealed and replaced s. 17 of The Wills Act, 1996 with the following: 17(1) A will is revoked when: (

a) the testator marries; or (

b) the testator has cohabited in a spousal relationship continuously for two years . (2) Subsection (1) does not apply where: (

a) there is a declaration in the will that it is made in contemplation of the marriage or cohabitation in a spousal relationship; or

(

b) the will is made in exercise of a power of appointment of real or personal property that would not in default of the appointment pass to the heir, executor or administrator of the testator or to the persons entitled to the estate of the testator if he or she died intestate. (3 ) Clause (1)(

a) does not apply where the testator marries a person with whom he or she is cohabiting and has cohabited in a spousal relationship continuously for two years . [Emphasis added] [ 30 ] The amendments to s. 17 of The Wills Act, 1996 brought about by s. 10 of the MSAA (No. 2) were proclaimed into law on November 1, 2001. There is nothing in the MSAA (No. 2) expressly providing for the retroactive application of the amended s. 17 .

This is significant to the within applications because, while Roy and Paulette continuously cohabited for a period of two years as spouses, they would have achieved “spousal status” prior to passage of the MSAA (No. 2) and prior to proclamation of s. 10 thereof which, as mentioned, amended s. 17 of The Wills Act, 1996. ANALYSIS a. Can this application be determined on the basis of affidavit evidence or is viva voce evidence required in order to determine the validity of the 1998 will? [ 31 ] Shayne, Dawn, and Paulette each filed an affidavit setting out the facts within their knowledge.

The core facts are not in dispute and there is no issue with regard to whether Roy and Paulette cohabited in a spousal relationship continuously for a period of two years. [ 32 ] The only factual issue in dispute is whether Paulette intentionally withheld knowledge of the existence of Roy’s 1998 will. [ 33 ] Where there is a conflict in affidavit evidence, the matter can only satisfactorily be resolved by means of viva voce evidence with rights of cross-examination on the evidence adduced in court.

Unlike Re Dixon Estate , 2005 SKQB 119 , none of the parties expressed a desire to challenge the affidavit evidence by cross-examination, nor did they propose to adduce additional evidence. In fact, all parties are quite satisfied that the applications are confined to narrow legal issues resolvable on the undisputed facts put before this Court. [ 34 ] I am satisfied both applications can be resolved on the basis of affidavit evidence alone and that the circumstances do not necessitate a trial. b.

Was the 1998 will revoked after Roy and Paulette had cohabited continuously in a spousal relationship for two years or more? [ 35 ] Bernesky is the leading decision on the issue of when ss. 17(1)(

b) takes effect relative to the dates of a spousal relationship. This Court was called upon in Bernesky to determine whether s. 17 , as amended, applied retroactively and if the amendments to s. 17 had the effect of statutorily revoking the testator’s will (made in 1995) by virtue of a common law relationship. [ 36 ] In Bernesky , the testator had made a will in 1995, giving his farm house, contents, and 50% of his residue to Ms. Bernesky. The balance of his estate was divided amongst his surviving siblings. The testator and Ms.

Bernesky, who had never married, had cohabited continuously as spouses from 1977 to the date of the testator’s death in 2002. [ 37 ] The parties in Bernesky had achieved the two-year anniversary of their cohabitation as spouses before the MSAA (No.2) came into effect. Ryan-Froslie J. (as she then was) was asked to determine meaning of ss. 17(1) (

b) of The Wills Act, 1996 relative to the circumstances in that case, i.e. whether the two years of continuous cohabitation must occur after the legislation came into effect on November 1, 2001, or if the legislation reaches back and applies to cohabitation that was completed prior to the amendment coming into effect. Ms. Bernesky had argued for a retroactive application of ss. 17(1)(b). [ 38 ] In rejecting the retroactive application of ss. 17(1)(b), Ryan-Froslie J. commented upon the undesirable consequence such an

interpretation would have on most common law couples. At para. 30 she said: 30 If s. 17(1)(

b) was interpreted to operate retroactively, it would revoke every will in existence on November 1, 2001 where the testator had lived in a continuous spousal relationship for two years after the will was made. Some people affected by such an

interpretation would be unable to make new wills because they now lack testamentary capacity. Nothing in the discussions leading up to the passage of Miscellaneous Statutes (No. 2) leads me to believe this was the legislative intent. Surely if the legislature intended a mass revocation of wills, they would have said so and enabled individuals adversely affected to take steps to alleviate any negative impact upon them. Retroactive operation of s. 17(1)(

b) would arbitrarily deprive individuals of valid wills while doing little to achieve the legislative purpose of giving common law and same sex couples the same rights as married couples. Any spouse adversely affected by not giving s. 17(1)(

b) retroactive operation would be able to pursue remedies under The Family Property Act and The Dependants' Relief Act, 1996 . [ 39 ] Following a thorough analysis of the issues and consideration of the Legislature’s intent, Ryan-Froslie J. concluded: 1) there was a presumption at law against retroactive application of legislation, and 2) the presumption against retroactive application in the case of ss. 17(1)(

b) was not rebutted by express legislative provision or by necessary implication. “As such, ss. 17(1)(

b) revokes wills only in those situations where the two year anniversary date of continued cohabitation in a spousal relationship

is reached after the legislation came into effect, that is after November 1, 2001” (para. 35). In

summary, she concluded, the “triggeringevent” (i.e. the two year anniversary date of spousal cohabitation) must occur after the will is made and after the legislation came intoeffect. [40] The decision in Bernesky was upheld on appeal on its facts (2004 SKCA 98, [2004] 10 WWR 1). (In Bernesky, thesecond anniversary of continuous cohabitation occurred before the testator made his will).

In the result, the Court of Appeal found itunnecessary to consider whether s. 17 operated retrospectively such that their judgment was not to be taken as either approving ordisproving the reasoning and conclusions of the trial judge. (para. 3) [41] There have been no reported decisions subsequent to Bernesky touching upon the trial judge’s reasoning on theretroactivity issue. [42] I find the reasoning of Ryan-Froslie J. thorough and compelling and see no reason to deviate from the ratio of that case.Applying Bernesky to the facts of this case leads to the conclusion that Roy’s 1998 will was not revoked by reason of his subsequenttwo-year spousal relationship with Paulette.

The triggering event occurred after the 1998 will was made but before the 2001 legislativeamendments to ss. 17(1)(

b) came into effect. Accordingly, the parties were governed by s. 17 of The Wills Act, 1996 as it existed in 2000,which meant that only a subsequent marriage revoked a prior will. This means Roy’s 1998 will was not revoked by reason of hiscontinuous cohabitation with Paulette for a period of two years after he made his will. c.

Was the 1998 will revoked by the marriage of Roy and Paulette in August 2012? [43] Having concluded that Roy’s 1998 will was not revoked by reason of his subsequent spousal relationship with Paulette,I must go on to consider whether it was revoked by his subsequent marriage to her in August 2012. [44] This issue brings into play s. 17(3) of The Wills Act, 1996.

This provision declares that the deemed revocation by reasonof a subsequent marriage (ss.17(1)(a)) does not apply “where the testator marries a person with whom he or she is cohabiting and hascohabited in a spousal relationship continuously for two years.” [45] The facts in this case are not in dispute. Roy made a will on August 13, 1998. Roy and Paulette moved in togethershortly after he made his will in August or, at the latest, September 1998. They continuously resided together in a spousal relationshipthereafter, achieving spousal status in August or September 2000. They married in August 2012.

In short, Roy married Paulette, withwhom he was cohabiting at the time of their marriage, and Roy and Paulette had cohabited in a spousal relationship continuously for aperiod of at least two years prior to their 2012 marriage. [46] Given these circumstances, Dawn argues that s. 17(3) is directly applicable to the facts with the result that it precludesthe automatic revocation of Roy’s will otherwise dictated by the operation of ss. 17(1)(a). [47] Paulette submits that s. 17(3) is ambiguous, and it leads to inconsistent and inequitable results between married peopleand those who live in common law. [48] The Supreme Court of Canada decision in (Re) Rizzo & Rizzo Shoes Ltd., (SCC), [1998] 1 SCR 27[Rizzo] is the controlling authority on statutory

interpretation. Rizzo instructs courts to approach the task of statutory

interpretation withthis framework in mind: 21 Although much has been written about the

interpretation of legislation (see, e.g., Ruth Sullivan, Statutory

Interpretation (1997);Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter "Construction of Statutes"); Pierre-André Côté, TheInterpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates theapproach upon which I prefer to rely. He recognizes that statutory

interpretation cannot be founded on the wording of the legislationalone. At p. 87 he states: Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammaticaland ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. … [49] Thus, s. 17 must be examined to determine its ordinary meaning. The words employed in s. 17(3) must be consideredwithin the context of the entire section, The Wills Act, 1996 as a whole, the historical backdrop to s.17(3), and the objects and purposes ofthe legislation. [50] I begin with the words themselves. Subsection 17(1)(

a) provides that a will is revoked upon a subsequent marriage.This “deemed” result is expressly subject to s. 17(3) which states that the deemed revocation brought about by ss. 17(1)(

a) isinapplicable when the testator marries a person with whom he or she is cohabiting and has cohabited in a spousal relationshipcontinuously for two years. [51] The plain wording of this provision would seem to embrace Roy and Paulette’s circumstances. There was a prior will.Roy subsequently married Paulette with whom he was cohabiting at the time of marriage, and they married after they achieved spousalstatus. [52] But, like Bernesky concerning ss. 17(1)(b), the

section provides no guidance as to the proximity or timing of thecohabitation relative to the making of the will. It raises these questions: when must the two year cohabitation occur in relation to thewill? Does s. 17(3) apply to instances where both the will was made and the spousal status achieved prior to the 2001 legislation takingeffect? Did the Legislature intend that an “old will” be saved by two years of subsequent cohabitation? [53] These inherent ambiguities invite further consideration of whether the

interpretation advanced by Dawn is consistent

with the policy and legislative intent brought about by amendments to s. 17 of The Wills Act, 1996 through the MSAA (No. 2 ). [ 54 ] Both in legislation and at common-law, the intention of a testator is of primary significance. It is the goal of the court to give effect to the property distribution of the deceased as expressed in his or her last will and testament. For this reason, the circumstances which warrant the revocation of a will are limited. [ 55 ] The Wills Act, 1996 provides for only two such deemed revocation scenarios.

The first occurs upon the execution of a subsequent will, or in the other circumstances described in s. 16 . The second instance of automatic or deemed revocation occurs when the testator marries (ss.17(1)(a)) or has cohabited in a spousal relationship continuously for a period of two years (ss. 17(1)(b)). [ 56 ] The Law Reform Commission of Saskatchewan canvassed the underlying policy objectives behind the deemed revocation function arising from a subsequent marriage.

In its paper, Revocation of Wills: Final Report (Law Reform Commission of Saskatchewan, 2006) (at p 6) the Commission commented: Modern defenders of the revocation rule justify it on the ground that a will made before marriage will not usually make any bequest to the future spouse and children of the marriage. If a will remains in place after marriage, it effectively disinherits the spouse and children by depriving them of the share of the estate they would receive under The Intestate Succession Act, 1996 if there was no will .

While a will made after marriage could also disinherit the testator’s spouse and children, automatic revocation of a will made prior to marriage ensures that the decision to disinherit is deliberate and considered. The protection provided by the rule is clearest in the case of a testator who has made a will before a first marriage, and dies leaving a spouse and young children. Because the will is revoked, the spouse and children will generally receive the bulk of the testator’s estate under intestate succession legislation, which applies in any case in which there is no valid will.

If the will remained valid, it would oust intestate succession legislation. The spouse and children could still apply for maintenance out of the state under The Dependant’s Relief Act , but this relief is based on need, and is thus usually less than would be received on an intestacy. The spouse could also apply for division of the estate under The Family Property Act , but this entitlement exists whether there is a will or not. In addition, property brought into the marriage by the testator (other than the family home) is not subject to division under in The Family Property Act .

This will be a particularly important factor if the testator dies prematurely, before the young couple have acquired substantial assets together. [emphasis added]. [ 57 ] While protection of spouses and children was the initial objective behind the implementation of s. 17 , the 2001 amendments were motivated by the need to give equal “legal footing” to all forms of spousal relationships.

A review of the transcript from the second reading of Bill No. 47 ( MSAA (No. 2) ) provides insight into the Legislature’s intent, i.e. “to ensure consistent rules respecting when a common-law or same-sex partner is eligible to make an application to the court under these Acts….” [ 58 ] This Court in Bernesky acknowledged the aforementioned policy objectives in describing the mischief the amendment sought to address: 17 … The "mischief" the legislature was addressing was the possibility a "spouse" would be inadvertently left out of a will where the will was made before a testator established a "spousal relationship. [ 59 ] An

interpretation of s. 17(3) which ousts the automatic revocation of a will where the will is made prior to the commencement of a relationship and where the couple subsequently cohabitate for two years and then marry, runs counter to the original policy objectives of the

section and those which underlie the 2001 amendments. Instead of achieving equal legal footing amongst the different forms of spousal relationships, namely married couples and common-law/same-sex couples, married couples would assume the disadvantaged status of the common-law/same-sex couple as it existed prior to the s. 17 amendments. [ 60 ] In other words, if Dawn’s

interpretation were to prevail, the only wills made in advance of a spousal relationship susceptible to automatic revocation upon marriage would be those where: (

a) the couple did not live together before marriage; or (

b) the couple lived together for less than two years before marriage. Furthermore, where couples live together for a substantial period of time before marriage, Dawn’s

interpretation of s. 17(3) has the effect of rendering valid most “old” wills when one of the spouses passes away. What purpose would be served by s. 17(3) in those circumstances? [ 61 ] Without s. 17(3), the legal realities of the married couple and the common law couple would remain imbalanced. Section 17(3) allows any wills made by the common law couple, once their legal status is established ( i.e. once two years has passed), to remain valid in is entirety, provided the union is not terminated. [ 62 ] In circumstances where the will is made after the couple has cohabitated for two years - but before they decide to marry – provides the most plausible

interpretation of s. 17(3). It has the effect of ensuring both protection of spouses and children as well as equality between the legal rights of married couples and common law/same-sex couples. [ 63 ] The unique facts of the Trottier case illustrate these issues. For instance, we know: (

a) Paulette was not Roy’s first wife; (

b) Roy acknowledged her in his 1998 will (albeit nominally) prior to the couple cohabiting let alone having attained any form of legal status; (

c) Roy left two adult children from his first marriage for whom provision was made; and (

d) Roy and Paulette had a long term, common law spousal relationship and finally married prior to Roy’s death. An

interpretation of s. 17(3) which deems the old 1998 will valid in the face of 14 years of subsequent cohabitation followed by marriage, yields an unfavourable and unjust outcome for Paulette. [ 64 ] Given that the ordinary meaning of s. 17(3) is not clear, it is within my purview to adopt an

interpretation that is plausible based on principles of statutory

interpretation. Declaring Roy’s prior will valid upon his marriage to Paulette in 2012, following many years of cohabitation, achieves neither objective. First, it fails to protect Paulette as a spouse who would otherwise receive a relatively small bequest under the 1998 will. Second, it perpetuates legal differences between married and common law couples as the married surviving spouse (Paulette) is excluded from inheritance under The Intestate Succession Act as the direct result of the nature of their union. Instead, an

interpretation of s.17(3) which makes most sense and is better suited to achieving the policy objectives and legislative intent is one which precludes automatic revocation upon marriage only if the will is made after two years of cohabitation and

spousal status is achieved. [ 65 ] For these reasons, I find that Roy’s August 1998 will was revoked by his subsequent marriage to Paulette and the operation of ss. 17(1) (

a) of The Wills Act, 1996 .

d) Is Dawn entitled to solicitor-client costs? [ 66 ] Dawn seeks an order for solicitor-client costs against Paulette on this application and on her application in Paulette’s family law proceedings, which she argues would have been unnecessary had her standing as co-executor under the 1998 will been known and acknowledged. She also seeks costs for the estate premised on her position that the 1998 will was valid and the consequent legal costs which must now be incurred with an application for letters probate could have been avoided. [ 67 ] Costs are discretionary.

The exercise of that discretion is guided by Rule 11-1 of The Queen’s Bench Rules which provides: 11-1(1) Subject to the express provisions of any enactment and notwithstanding any other rule, the Court has discretion respecting the costs of and incidental to a proceeding or a step in a proceeding, and may make any direction or order respecting costs that it considers appropriate.

(2) In exercising its discretion as to costs, the Court may determine: (

a) by whom costs are to be paid, which may include a successful party; (

b) to whom costs are to be paid; (

c) the amount of costs; (

d) the date by which costs are to be paid; and (

e) the fund or estate or portion of the fund or estate out of which costs are to be paid.

(3) In awarding costs the Court may: (

a) fix all or part of the costs with or without reference to the Tariff; (

b) award a lump sum instead of or in addition to any assessed costs; (

c) award or refuse costs with respect to a particular issue or step in a proceeding; (

d) award assessed costs up to or from a particular step in a proceeding; (

e) award all or part of the costs to be assessed as a multiple or a proportion of any column of the Tariff; (

f) award costs to one or more parties on one scale, and to another party or other parties on the same or another scale; (

g) direct whether or not any costs are to be set off; and (

h) make any other order it considers appropriate.

(4) In exercising its discretion as to costs, the Court may consider: (

a) the result of the proceeding; (

b) the amounts claimed and the amounts recovered; (

c) the importance of the issues; (

d) the complexity of the proceedings; (

e) the apportionment of liability; (

f) any written offer to settle or any written offer to contribute; (

g) the conduct of any party that tended to shorten or to unnecessarily lengthen the proceeding; (

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

i) whether any step in the proceeding was improper, vexatious or unnecessary; (

j) whether any step in the proceeding was taken through negligence, mistake or excessive caution; (

k) whether a party commenced separate proceedings for claims that should have been made in one proceeding or whether a party unnecessarily separated his or her defence from that of another party; and (

l) any other matter it considers relevant.

[ 68 ] The guiding principles applicable to an award of solicitor-client costs are set out in para 118 of Siemens v Baldwin , 2002 SKCA 84 , 219 Sask R 282 : 118 These are the principles, relevant to this appeal, which I take from my review of the above authorities: 1. solicitor and client costs are awarded in rare and exceptional cases only; 2. solicitor and client costs are awarded in cases where the conduct of the party against whom they are sought is described variously as scandalous, outrageous or reprehensible; 3. solicitor and client costs are not generally awarded as a reaction to the conduct giving rise to the litigation, but are intended to censure behaviour related to the litigation alone; 4. notwithstanding point 3, solicitor and client costs may be awarded in exceptional cases to provide the other party complete indemnification for costs reasonably incurred. [ 69 ] Generally speaking, solicitor-client costs are reserved for rare and exceptional cases, such as where the conduct of the party against whom they are sought is scandalous, outrageous or reprehensible.

They are intended to censure behaviour related to the litigation. [ 70 ] Dawn submits the circumstances of this matter falls within the “rare and exceptional” category.

Not only did Paulette fail to disclose the 1998 will when she discovered a copy in November 2012, but she failed to disclose it when it would have been apparent to her through court filings and affidavits in the various court proceedings that neither Shayne or Dawn were aware of the existence of the 1998 will and acted upon the belief Roy’s 1997 will was his last will and testament. [ 71 ] On behalf of the estate, Shayne takes no position on the matter of costs. [ 72 ] Paulette’s solicitor offered a more benign explanation for her non-disclosure.

He concedes that Paulette brought a copy of Roy’s 1998 will to his attention in November 2012, but he concluded that the will had been revoked by operation of ss. 17(1) (

a) of The Wills Act, 1996 . He set it aside, and did not give it another thought until the statement of documents was prepared. It is his position that if anyone is to blame, it is him; and that if an order for costs is imposed, it should be visited upon him. [ 73 ] While I have considerable sympathy for Dawn and the estate, I find myself unable to agree with Dawn’s position on solicitor–client costs for several reasons. [ 74 ] Solicitor-client costs are intended to censure behaviour related to conduct within the litigation, not conduct giving rise to the litigation.

Obviously, Paulette’s failure to disclose a key piece of information led to confusion and clearly exacerbated bad feelings amongst the parties. But even if she did so purposefully to achieve a better financial result from an intestacy (which has not been established), Paulette’s lack of disclosure constituted conduct giving rise to the litigation, not conduct within the litigation. [ 75 ] Second, there must be evidence upon which it can be objectively concluded that Paulette’s conduct was “scandalous, outrageous or reprehensible”.

Paulette’s legal counsel offers a different perspective on her inaction; in fact, he places full blame on himself. As there was no trial and Paulette was not cross-examined on her affidavit, in order for me to find her behaviour “scandalous, outrageous or reprehensible”, I am required to draw an adverse inference about her behaviour derived from the affidavits. Yet, in the face of counsel’s explanation (albeit not sworn), another, less sinister inference is equally plausible. [ 76 ] Third, there is no legal basis to award costs for collateral applications and proceedings not before this Court.

Costs in the family law proceedings need to be addressed within the scope of that action, not redressed through the present application. [ 77 ] For all of these reasons, the imposition of solicitor-client costs is inappropriate in the circumstances. [ 78 ] Should Dawn, nevertheless, have her costs against Paulette on a party-party basis? Clearly, Paulette should have disclosed the existence of Roy’s 1998 will when it came to her attention in November 2012. As the Administrator of Roy’s estate (an appointment Paulette pressed for), Shayne was entitled to know there was a subsequent will.

The fact Paulette’s argument in this application ultimately prevailed is irrelevant and provides no justification for her decision not to disclose the will when it was discovered. A determination of the validity of the 1998 will is a matter for judicial consideration, not for one of the parties, particularly so where a party stands to potentially benefit from non-disclosure. [ 79 ] That said, Paulette was successful in the bottom line result. This result will mean no change to the administration of the estate, and no need for an application for probate.

In the normal course in estate proceedings, the parties are entitled to costs on a solicitor-client basis payable from the estate. As no one party will disproportionally bear the costs from their share of the estate, I see no reason to depart from the general rule. CONCLUSION AND ORDER [ 80 ] For the forgoing reasons, the following order will issue: a. The August 13, 1998 Last Will and Testament of Roy Phillipe Joseph Trottier was revoked by reasons of his subsequent marriage to Paulette Marie Trottier pursuant to ss.17(1) (

a) of The Wills Act, 1996 . b. The application brought by Dawn Rhea Santiago is dismissed. c. Each party shall have costs on a solicitor-client basis, payable from the estate. d. Legal counsel for each party shall submit their respective statements of account to my attention for assessment pursuant to Rule

11-20. J. L. M. SCHWANN