Burgoyne Estate (Re), 2017 NSSC 275

SUPREME COURT OF Nova Scotia Citation: Burgoyne Estate (Re), 2017 NSSC 275 Date: 2017-10-26 Docket: SBW No. 452862 (P15349) Registry: Bridgewater Between: Daniel K. Burgoyne and Estate of Irene Anita Burgoyne Applicants v. Gary B. Burgoyne Respondent Judge: The Honourable Justice Peter Rosinski Heard: January 25, 2017, in Bridgewater, Nova Scotia Final Written Submissions: August 14, 2017 Counsel: Tanya Butler, for the Applicants Michael K. Power, for the Respondent Introduction [ 1 ] In her Will, Irene Burgoyne appointed, as co-executors to administer her estate, her sons; Gary Burgoyne and Daniel Burgoyne.

On February 21, 2014, Gary sustained a very serious head injury. On November 5, 2014, Irene Burgoyne passed away. Probate was granted shortly thereafter. [ 2 ] On June 23, 2016, Daniel Burgoyne filed an application to remove Gary as a co-executor under s. 64(3)(

a) of the Probate Act . His grounds asserted that: “Gary is not mentally competent to administer my mother’s estate” and, therefore, should be removed pursuant to section 61(1)(b)(

v) of the Probate Act on the ground that Gary “is mentally incompetent…” [ 3 ] On January 25, 2017, at the end of the day, I ruled against Daniel Burgoyne not being satisfied that Gary Burgoyne was “mentally incompetent” such that he should be discharged as co-executor.

[ 4 ] I urged the parties to settle the matter of costs but they were unable to do so. This is my decision regarding costs. [ 5 ] Daniel argues that as an executor his costs should be reimbursed from the estate on a solicitor/client basis – Morrison v.

Morrison Estate , 2012 NSSC 451 ; or alternatively that the parties should bear their own individual costs, and ultimately have their costs taxed upon the passing of accounts when the estate has been completed and in the full context of the administration of the estate. [ 6 ] Gary argues that Daniel should pay the costs personally according to s 92(4) of the Probate Act , which requires that the “application is frivolous or vexatious”.

He submits I should rely upon Rule 77 and Tariff C for an application that was one half day – i.e. $1,000 applying a multiplier of three “given the complexity importance to the parties and the effort (affidavit and brief) required for $3,000 in total. Determination of Costs [ 7 ] The purpose of costs may broadly be stated as reimbursing to a substantial extent the successful party for legal costs reasonably and necessarily expended.

It is thereby indirectly intended to encourage parties to temper their conduct, so that the litigation will be reasonably and efficiently conducted. [ 8 ] In estate matters the starting point is s. 92 of the Probate Act . Personal costs against an estate representative are permissible expressly where, “the application is made as a result of the personal representative failing to carry out any duty imposed on the personal representative by this Act”, or, “in circumstances where the personal representative who has made an application that the court concludes ‘is frivolous or vexatious’.

In Wittenberg v Wittenberg Estate , 2015 NSCA 79 (see also Casavechia v. Noseworthy , 2015 NSCA 56 ), Justice Bryson emphasized that: “To the extent that there was a traditional practice of paying costs of all parties out of the estate, those days are over. Provided that a personal representative is discharging her duties and is acting reasonably, she can be expected to be indemnified from the estate.” (para. 99) [ 9 ] To my mind, the first question to be answered is whether the co-executors here acted reasonably. Gary’s head injury had ongoing impacts on his cognitive abilities.

It was not unreasonable for Gary to continue as co-executor, nor was it unreasonable for Daniel to question Gary’s capacity to continue as co-executor. To that end, Daniel brought his application. [ 10 ] The second question to be answered is on what basis should costs be permitted – using Tariff C, or a solicitor/client basis? Ultimately, this was a half-day matter with two witnesses. It was not complex or lengthy.

Having determined that the estate should pay the necessary and reasonable costs of the co-executors here, I need not go on to consider Gary’s suggestion that Daniel personally indemnify him on the basis of Tariff C, though I also note that under Tariff C, $1,000 to $1,500 would have been an appropriate figure.

Moreover, although Gary argued for a multiplier of three, and that $3,000 be the assessed amount of costs which Daniel should pay to him, under Tariff C the multiplier is only supposed to be used when, “an order following an application in chambers is determinative of the entire matter at issue in the proceeding”. The multiplier would not have been applicable here. [ 11 ] Generally, it is appropriate for the estate to reimburse co-executors on a solicitor/client basis, since they are presumed to be acting with the authority and best interests of the estate in mind.

I have found this to be the case here. [ 12 ] Given that the adverse parties here were both executors, I am satisfied that the general rule should be followed; costs should be reimbursed on a solicitor/client basis from the estate. [ 13 ] Daniel’s claimed legal costs as set out in his brief include: Fees………………………………………………$7,114.00 Disbursements……………………………………$2,108.60 HST………………………………………………$1,211.52 Total…………………………………………… $10,434.12 [ 14 ] I note the invoices in support of the fees here begin with work done beginning January 22, 2015, and ending August 11, 2017.

The Application herein was filed by Daniel on June 23, 2016. The July 14, 2016, invoice is for $3,583.22. The August 11, 2017, invoice is for $6,850.90 plus $8,199.47 for a total of $15,988.48. [ 15 ] Gary Burgoyne claimed $3,000 in costs would be an appropriate amount to be paid by Daniel to compensate him on a party and party basis.

I infer that, if $3,000 would be a substantial indemnification of his actual costs, then at 75% indemnification, Gary’s solicitor/client costs regarding Daniel’s application would approximate $4,000. [ 16 ] Daniel Burgoyne claimed $10,434.12 in solicitor/client costs that he requests be paid by the estate. I note that in some of the invoices he has submitted, there is work that is not temporally or substantially connected directly enough to his application to have Gary removed as executor to be properly considered within the ambit of this court’s order.

However, as noted above the claim is already reduced from $15,988.48 to $10,434.12. This reduction is appropriate to the circumstances. As the applicant, his legal costs are understandably greater than Gary’s. Conclusion [ 17 ] To do justice as between the estate, including the interests of the beneficiaries and both of the co-executors, I will order the following costs be paid by the estate: To Gary Burgoyne………………………$4,000.00

To Daniel Burgoyne…………………...$10,434.12 [ 18 ] I direct that counsel for Daniel Burgoyne prepare the order. Rosinski, J.