McCully v. Rogers Estate, 2012 NSSC 435

COURT OF PROBATE FOR NOVA SCOTIA Citation: McCully v. Rogers Estate, 2012 NSSC 435 Date: 20120927 Docket: Amh - 10580(318336) Registry: Amherst Between: Joyce McCully Applicant v. Roxanna Rutherford Rogers Estate and Peggy Rogers, Residual Beneficiary Respondents DECISION Judge: The Honourable Justice J. E. Scanlan Heard: January 16, 2012, Truro, Nova Scotia Final Written Submissions: September 14, 2012 Counsel: Rob Sutherland, Solicitor for the Applicant, Joyce McCully J. Andrew Fraser, Solicitor for the Respondent, Roxanna Rogers Estate/Canada Trust Company (Personal Representative of Roxanna Rogers) Ann Levangie, Solicitor for the Respondent, Peggy Rogers, Residual Beneficiary

By the Court : [ 1 ] This matter was before the Court on January 16, 2012 in the form of an application by Ms. McCully requiring the proof in solemn form of a Will that was executed by the late Roxanna Rutherford Rogers. The Will was dated January 29, 1997 and probate was granted April 17, 2009, Roxanna Rogers having died on February 14, 2009. [ 2 ] By way of application the Applicant, Ms. McCully, requested that the Will be set aside on the basis that Roxanna Rogers was of an unsound mind at the time the Will was made.

Alternatively, the Applicant suggested the Testatrix was subject to the undue influence of her brother Alfred Rogers and his family, including Peggy Rogers. The Applicant also contended that an alternative Will had been made revoking the subject Will. No other or subsequent Will was ever found or produced. [ 3 ] The steps leading up to the hearing of January 16, 2012, had been long, tedious and wasteful to say the least. It should have been apparent to the Applicant at the very earliest stages the application was completely without merit.

The Applicant had made serious allegations of fraud in that she alleged that the signature on the Will was not that of Roxanna Rogers. This allegation of fraud challenged the discovery evidence of a Solicitor, Mr. Ellis, who indicated he had witnessed the Will being executed. [ 4 ] The parties had exchanged respective affidavits disclosing documents and they had extensive discoveries in Nova Scotia and Ontario. I am satisfied that at just about every juncture the Applicant should have been aware that her case was without merit. The actions of the Applicant delayed the settling of the estate.

This resulted in extensive ongoing costs. The expenses included solicitor ’ s fees and costs related to storage and management of the estate. The Applicant refused various offers to settle which were substantially more generous than the final consent order for dismissal. That consent order provided that the Applicant ’ s own costs were not to be paid out of the estate but it did not settle the issue of costs as between the Applicant, the estate and the cost to the residual beneficiaries. [ 5 ] It is noted by the Applicant that the total value of the estate was approximately $400,000.00.

I note the representations from the estate and the residual legatee that legal fees and disbursements alone exceed $100,000.00. I am satisfied that none of the expenditure in relation to this application is justified in the sense that the Applicant knew, or should have known almost from the beginning, that the challenge to the Will was completely without merit.

The Applicant had noted that, had the Will devised a portion of the estate onto her she would not have challenged the validity of the Will nor the testamentary capacity of the deceased. [ 6 ] Both the estate and residual beneficiary request costs on a solicitor/client basis.

The Applicant ’ s counsel suggests that the Court apply the tariff. [ 7 ] Section 92(1) of the Probate Act provides: In any contested matter, the Court may order the costs of and incidental thereto to be paid by the party against whom the decision is given or out of the estate and if such party is a personal representative order that the costs be paid by the personal representative personally or out of the estate of the deceased. [ 8 ] Rule 77.03 of the Civil Procedure Rules addresses the issue of liability for costs in subsections 1, 2 and 3:

(1) A judge may order that parties bear their own costs, one party pay costs of another, two or more parties jointly pay costs, a party pay costs out of a fund or an estate, or that liability for party and party costs is fixed in any other way.

(2) A judge may order a party pay solicitor and client costs to another party in exceptional circumstances recognized by law.

(3) Costs of a proceeding follow the result, unless a judge orders where a Rule provides otherwise. [ 9 ] I am satisfied that the Court has authority to grant solicitor/client costs but the Court should reserve the granting of solicitor/client costs to exceptional or extraordinary circumstances. As noted by Justice Hood in Smith ’ s Field Manor Development Ltd. V. Campbell, 2001 NSSC 44 , at para. 483 conduct deserving of solicitor/client costs includes both reprehensible behaviour of a milder form of misconduct. Referencing Leung v. Leung, [1993] B.C.J.

No. 2909 (B.C.S.C.) , reprehensible is defined to: Include conduct which is scandalous, outrageous or constitutes misbehaviour; but it also includes milder forms of misconduct. He said it means simply deserving of reproof or rebuke. [ 10 ] Counsel have referred to a number of cases throughout their brief, all addressing the issue of solicitor/client costs and when it is appropriate. I am satisfied the actions of the Applicant in this case are deserving of rebuke although I am not satisfied it is so extreme as to be one of those rare and exceptional cases which would justify solicitor/client costs.

I am satisfied that a more appropriate disposition in this case would be to order lump sum costs against the Applicant payable both to the estate and to the residual beneficiary. [ 11 ] The Applicant ’ s challenges to the estate were without merit and there were any number of opportunities for the Applicant to withdraw the claim. The steps taken by the Applicant included having four different lawyers represent her at various stages in the application resulting in unnecessary delays and expenses to the estate.

There was also a last minute filing of a handwriting expert, challenging whether or not the testator had even executed the Will or initialled the pages of the Will. That handwriting sample also challenged the credibility of the witnesses to the Will. This was done well after discovery examinations of the witnesses, including Mr. Ellis. Mr. Ellis indicated that in his opinion the testatrix was competent and he witnessed her execute the Will and she had in fact signed the Will in his presence. To suggest that the handwriting was not that of Ms.

Rogers is to suggest that the testimony of the witnesses to the Will was fraudulent. [ 12 ] The evidence in relation to the issue of undue influence was obviously nothing more than an allegation wherein the Applicant attempted to use every possible grounds to challenge the Will and to hold up the dispersal of the estate and attempt to delay dispersal or, alternatively, to maximize a negotiated settlement. [ 13 ] If this Court does not make a substantial award of costs the net effect of the Applicant ’ s meritless challenges will be as follows: (

a) If she could not get a share of the estate, then the real beneficiaries will be denied a very substantial portion of their legacy through the unwarranted costs of defending against senseless allegations. [ 14 ] I do not accept the Applicant ’ s suggestion, through counsel, that the Court should apply the tariff based on the amount of the estate or to have the fees paid out of the estate. This case is one which cries out for a serious rebuke to the approach taken by the Applicant.

Her baseless application has resulted in an extraordinary wasting of the estate. [ 15 ] I am satisfied that an appropriate disposition in this case is to order the Applicant, Ms. McCully, to pay to the estate a lump sum amount as against legal fees and disbursements of $50,000.00. In addition she will pay the additional cost of storage incurred by the estate in the amount of $5,000.00. The Applicant will also contribute to the Canada Trust fee for service over the course of the litigation which fees were substantially increased as result of the delay caused by the actions of Ms. McCully.

The contribution in that regard will be $2,000.00. [ 16 ] As regards the fees of Ms. Rogers, the residuary beneficiary, costs will be payable by the Applicant, Ms. McCully, to Ms. Rogers in the total amount of $45,000.00 inclusive of disbursements. These amounts are not solicitor/client fees but represent a substantial contribution to the legal fees and disbursements. All those fees were incurred by the Respondents as a result of the completely inappropriate actions of the Applicant. J.

09/26/2012