Sweeney Estate (Re), 2020 NSSC 340

in the PROBATE COURT FOR Nova Scotia Citation: Sweeney Estate (Re) , 2020 NSSC 340 Date: 20201125 Docket: Yarmouth , No. 493716 Registry: Yarmouth IN THE ESTATE OF: RODNEY MICHAEL SWEENEY, Deceased Between: Geraldine Anne Sweeney Applicant v. The Estate of Rodney Michael Sweeney Respondent Judge: The Honourable Justice Pierre Muise Heard: By correspondence Final Written Submissions: November 3, 2020 Counsel: Andrew S.

Nickerson, Q.C., for the Applicant, Geraldine Sweeney Pamela Marie Connors and Wayne Michael Sweeney, the Objectors, Self Represented By the Court: [ 1 ] This is a costs decision following a contested application for proof in solemn form of a lost will. Application [ 2 ] Rodney Michael Sweeney (“Rodney”) passed away May 5, 2008. He had signed an undated will in about 2006. [ 3 ] His widow, Geraldine Anne Sweeney (“Geraldine”), had his original will following his death and used it for various purposes, including dealing with banks.

She also brought it to the then Registry of Deeds Office in Yarmouth, where a copy was made. However, despite the matrimonial home being in her deceased husband’s name only, she did not have the will probated, thinking that presenting the will to the Registry of Deeds was sufficient to transfer title to her, in accordance with the residue clause in the will. She later discovered it was insufficient. In the interim she had lost the original will. Her son, Robert Todd Sweeney (“R.

Todd”) obtained, from the land Registration Office in Bridgewater, a scanned copy, purportedly of Rodney’s original will. [ 4 ] Geraldine, wishing to have the copy admitted to probate, on November 7, 2019, filed an application for proof in solemn form. Two of Rodney and Geraldine’s four children, Pamela Marie Connors (“Pamela”) and Wayne Michael Sweeney (“Wayne”) filed notices of objection to the application. They advanced, among other grounds, that the witnesses to the will were still alive, in good health, and could attest to having witnessed a single joint will signed by both Rodney and Geraldine.

That was inconsistent with the purported will copy, which indicated it was written as Rodney’s will only, signed only by him, and had the signatures of both witnesses attesting to his signature. [ 5 ] In the course of the hearing, they also presented evidence of motive and opportunity for R. Todd to alter the original will before a copy of it was made by the Registry of Deeds. [ 6 ] Despite the witnesses to the will being very credible witnesses, I concluded their recollection of what they had witnessed 13 to 14 years earlier was unreliable.

After considering the factors supporting a finding that the will copy was not a true copy, against those supporting a finding that it was a true copy, I concluded that it was. Therefore, I granted the application for proof in solemn form. Positions of the Parties [ 7 ] Geraldine, who is the primary executrix named in the will, now seeks costs from Pamela and Wayne.

She submits that, as the successful party, under the current approach to estate litigation costs, she should be entitled to costs payable by the persons who opposed her application, as the application was not made necessary by the actions of the testator. In support, she cites: Wittenberg v. Wittenberg Estate , 2015 NSCA 79 ; Whitford v. Baird , 2015 NSCA 98 ; and, Keddy v. Keddy Estate , 2016 NSSC 194 . [ 8 ] She seeks $18,750 in costs, using the basic scale in Tariff A, based on an amount involved being between $125,001 and

$200,000, plus $2,000 for the one day of trial. The amount involved is based on the matrimonial home being assessed at $132,500, and the fact that the question of ownership of the matrimonial home was important to her. It is the only asset needing probate to transfer title.

She advances, as additional support, that she made the objectors an offer to settle about 5 months before the hearing, which they rejected, justifying enhanced costs. [ 9 ] In addition, she seeks disbursements totalling $1,133.79, comprised of fees for filing, Royal Gazette advertising, and discovery examinations. [ 10 ] Pamela and Wayne submit that their costs, and Geraldine’s costs, ought to be paid from the Estate as: the copy of the will had to be proven in solemn form; the circumstances warranted filing their objection; it was in the public interest to do so; Geraldine’s actions created the need for the application in that she failed to protect the original will from loss, destruction or potential alteration; her delay in seeking to probate the will resulted in diminishment of the memories of the witnesses; and, despite being reminded that the Probate Court would want affidavits from the witnesses to the will, who were still alive, and being asked, before the motion for directions, why she had not contacted them, she only did so for the purpose of discoveries.

In support, they cite Blinn Estate (Re) , 2013 NSSC 10 , and Morash v. Morash Estate , 1997 NSCA 124 . [ 11 ] They further note Mitchell v. Gard , (1863) 164 E.R. 1280, at 1281, referre d to at paragraph 94 of Wittenberg , for the principle that “litigation caused by the testator or the residuary beneficiary should be borne by the estate”. That general principle is also articulated in the caselaw provided by Geraldine and is not in dispute.

It is only its application to the case at hand that is in dispute. [ 12 ] However, Geraldine replies that the law of costs in estate litigation, outlined in Morash Estate , is “no longer applicable”. [ 13 ] Pamela and Wayne each seek $5,000 in costs, based on 100 hours of work at $50 per hour, which is their current average rate of pay. For out-of-pocket disbursements, Pamela seeks $1,000 in airfare, plus $100 in postage and “affidavit” costs, and Wayne seeks $500 in gas to attend court four times, plus $100 in postage and “affidavit” costs.

Law [ 14 ] The law of costs in estate matters has changed since Morash Estate , in that it is no longer the general practice to order the estate to pay all of the parties’ costs, and the general rule, that the unsuccessful party bears the costs, applies, subject to certain exception: Wittenberg , para 99 ; and, Whitford , para. 25 . [ 15 ] In Zwicker v. Richardson (Estate) , 2019 NSSC 138, at paragraph 16 , I quoted, from Casavechia v.

Noseworthy , 2015 NSCA 56 , the principle that “the costs of the executor or personal representative of an estate involved in litigation pertaining to the estate is entitled to costs from the estate on a solicitor and client basis if it has acted reasonably”. The Objectors, in the case at hand, were not the personal representatives. However, they brought, into the proceeding, the evidence of the attesting witnesses, which is something that is usually expected of the personal representative.

As such, they, at least in part, performed a personal representative function. [ 16 ] At paragraph 20 of Zwicker , I summarized additional principles for determining costs in estate matters, extracted from legislation and jurisprudence, including the jurisprudence cited by Geraldine, as follows:

Section 92 of the Probate Act , S.N.S. 2000, c. 31 , provides that the court may order costs of a contested application to be paid “out of the estate” or by “the party against whom the decision is given”, including the personal representative personally, “where the application is made as a result of the personal representative failing to carry out any duty imposed on the personal representative” or the personal representative made the application and it is frivolous or vexatious.

Section 102 of the Probate Act incorporates the costs provisions in the Civil Procedure Rules where they extend beyond those in the Probate Act or Probate Rules . As stated at paragraph 10 of Baird Estate (Re) , 2014 NSSC 444 , “ Section 92(1) of the Probate Act does not limit the Court’s discretion to deal with costs pursuant to Civil Procedure Rule 77”. 3. Costs are in the discretion of the presiding judge, which is to be exercised in a principled manner. 4. The ultimate objective is to order costs that “will do justice between the parties”: CPR 77.02(1). 5.

A judge may increase or decrease Tariff amounts or award lump sum costs: CPR ’s 77.07 and 77.08. 6. Solicitor and client costs may be ordered “in exceptional circumstances recognized by law”: CPR 77.03 (2). 7. The old general rule was that all costs were paid out of the estate, with that of the personal representatives being on a solicitor and client basis, and that of other parties being on a party and party basis. That has been replaced by a more modern approach which aims to discourage unnecessary proceedings and preserve estates for the beneficiaries. 8.

A central focus of the modern approach is whether “the need for resort to the court was caused by the testator”. If so, the costs will be paid out of the estate: Prevost Estate v. Prevost Estate , 2013 NSCA 20 , para 17 . 9. The regular civil litigation costs rules, including that the unsuccessful party pays the costs of the successful party, are to be applied unless: (a) “the litigation arose as a result of the actions of the testator” such as where there is ambiguity as to the testator’s intentions; (

b) there are reasonable grounds to “question the execution of the will or the testator’s capacity in making the will” or whether the testator was a victim of undue influence or fraud, and information disclosed in the litigation process does not dispel those grounds; (c) “the litigation arose as a result of those with an interest in the residue of the estate” or the costs amount is “a proper burden for them to bear” ; or,

(d) “the litigation was reasonably necessary to ensure the proper administration of the estate”: Wittenberg v. Wittenberg Estate , 2015 NSCA 79 , paras 93 to 104 . [ 17 ] In Zwicker , the removed personal representatives were self-represented and largely successful in their application to pass accounts. In the case at hand, the self-represented Objectors were not the personal representatives, and were not successful.

Therefore, it is also helpful to reproduce the following passages form paragraphs 99 and 100 of Wittenberg : Provided that a personal representative is discharging her duties and is acting reasonably, she can be expected to be indemnified from the estate. Not so with an adverse party, who may obtain party-party costs if successful, but may have to bear her own costs or even have to pay them, if unsuccessful.

If the court proceeding can be ascribed to conduct of the deceased or residuary beneficiaries, a losing party may still recover costs from the estate, although usually on a party-party basis … . … [W]here … there is an unsuccessful party who is the cause of the litigation, it is proper that the unsuccessful party bear much of the burden. [ 18 ] Further, Wittenburg , at paragraph 93 and 94, cited, with approval, passages from Ian M.

Hull “Costs in Estate Litigation”, in which it was stated that: “there is a public interest in ensuring that wills are valid”; and, as the will’s validity or invalidity must be “determined with some degree of predictability, the courts seem to have relieved the unsuccessful parties to the litigation from paying the costs of the successful party”, where there was “sufficient and reasonable ground” for their position. The statement was made in the context of challenges to the validity of a will based on execution, capacity, undue influence and fraud.

However, it is equally applicable to circumstances where, as in the case at hand, there is a question regarding whether the copy of the will advanced is a true copy of the will executed by the deceased. [ 19 ] In Blinn Estate , party and party costs, payable from the estate, were awarded to the personal representative of a will, who was unsuccessful in an application to prove it in solemn form, because it was determined the testatrix did not have the requisite testamentary capacity. The successful party was the personal representative named in a prior will.

His costs were ordered to be paid from the estate on a solicitor-client basis. [ 20 ] At paragraph 23, the Court quoted, from Jollimore Estate v. Nova Scotia (Public Archives) , 2012 NSSC 8 , which listed, with approval, the “factors which are favourable or unfavourable to an award of costs from an estate”. The list is taken from Hull’s, “Costs in Estate Litigation ”. The factors provide helpful guidance in the case at hand, even though the Objectors were not personal representatives.

The factors are articulated as follows: Some considerations favourable to an award of costs out of the estate are: * where the litigation arises out of the acts or fault of the deceased; * where the order sought is for the protection of the trustee, such as an

interpretation problem or where other directions or advice of the court are sought; * where there are reasonable grounds for the litigation such as proof in solemn form; * where suspicious circumstances are demonstrated; * where the court's scrutiny or supervision is warranted.

Some considerations unfavourable to an award of costs out of the estate are: * proceedings unwarranted or unjustified; * intransigence of a party to a proceeding arising out of extra-legal considerations such as bad feelings between the parties; * actions by a party designed to delay or prohibit the trustee's administration of the estate without proper reasons for such action; * unnecessary proceedings, where for example, a subsequent will is not located by the executor or executrix as a result of an incomplete search therefor. [ 21 ] However, the question that must be foremost in counsel's mind is how to convince the court that the questions raised warrant investigation and inquiry of the circumstances, are sufficient to require proceedings to be taken.

Analysis Payment From the Estate [ 22 ] In the case at hand, the application for proof in solemn form had to be brought in any event because the original of the will had been lost. [ 23 ] It was lost solely because of Geraldine’s failure to take proper steps to protect it. She had the original and used it following Rodney’s death. She placed it with the original of her own will, which she had executed at the same time, before the same two witnesses. She kept them both in her home. However, they both went missing.

But for her negligence, she would still have had the original will, and the application for proof in solemn form would have been unnecessary. [ 24 ] Her delay of over 11 years before submitting the will to be probated contributed to the circumstances which resulted in the loss of the will. As the primary personal representative named in the will, she had a duty to have it probated without delay. She failed to discharge that duty.

[ 25 ] She is the sole beneficiary of the residue of the estate. If costs are to be paid out of the estate, they will effectively be hers to bear. That result is in keeping with the need for the application having arisen because of her actions. [ 26 ] After the matter was before the Court, the witnesses to the execution of the will were called to give evidence. Their evidence was that: they had witnessed Rodney and Geraldine sign one single will together, at the same time, before them; then, they signed as witnesses. I determined that was an honest, but unreliable and erroneous recollection.

The actions of the testator, Rodney, and the personal representative/residuary beneficiary, Geraldine, contributed to that faulty recollection. [ 27 ] Rodney and Geraldine had prepared their own wills from a will kit they had had for a long time. Geraldine’s sister and her husband came to their home and witnessed the signing of the wills. All four were present during the execution of both wills. The process was very quick and did not involve any discussion about the contents. The witnesses were called upon to remember the event 13 or 14 years later, because of Geraldine’s delay in seeking probate.

The one thing that stood out in their mind from the event was that Rodney had become upset with Geraldine because she started to sign in the wrong place.

They said that helped them recall that it was a single joint will. [ 28 ] If the will had been executed in a more solemn environment, such as in a lawyer’s office or at least in the presence of a lawyer, rather than in the Sweeney’s home during a visit by Geraldine’s sister and brother-in-law, more likely than not, the witnesses would have paid closer attention to the process. [ 29 ] If Geraldine had brought the matter before the Court in 2008 or 2009, instead of 2019, more likely than not, the witnesses would have had a more reliable recollection of what they observed. [ 30 ] Geraldine, and to some extent Rodney, were the cause of the litigation, not the Objectors. [ 31 ] The following combination of factors provided sufficient and reasonable grounds for the Objectors to oppose Geraldine’s application. [ 32 ] Firstly, they were aware that the witnesses recalled Rodney and Geraldine having signed a single joint will.

They were consistent on that point through their discovery, affidavit and trial evidence. If it was accurate, the copy of the will submitted for proof in solemn form could not have been a true copy of Rodney’s original will. [ 33 ] Secondly, the application documents served on the Objectors included an affidavit from R. Todd which they believed to be false for the following reasons.

It stated that he had been provided the copy of the will, attached as Exhibit A, by the Land Registration Office at Bridgewater, where it “was not indexed or included in the online records but had been kept by that Office in a vault with other documents held by them”. In December 2019, Wayne’s wife attended that Bridgewater Office and was told, including by the Mapping Supervisor, that the will copy would not have been housed there, they did not have a vault, and the copy of the will could not have been provided to R. Todd.

She followed up by email, seeking further details and clarification, plus relaying the contradictory comments in the affidavits of Geraldine and R. Todd. She did not receive a response. In July 2019, Wayne was informed, by the Mapping Supervisor, that he had provided a copy to R. Todd, who, at that point, wanted him to “stamp” it.

When asked why he had misinformed Wayne’s wife in December, he did not respond, and did not respond to subsequent inquiries from Wayne. [ 34 ] In addition, the Objectors consulted a lawyer, Oliver Janson, who told them that the Land Titles Office in Bridgewater would not retain a copy of the will, as it was not probated. [ 35 ] Thirdly, they knew that R.

Todd: had gone bankrupt following his separation from his spouse; still owed her money; had no home of his own; was living in their parents matrimonial home; was to receive it in Geraldine’s will (if Rodney’s will leaving it to her was his true will); and, he had been in the home, in the presence of the will, before Geraldine took it to the Registry of Deeds in Yarmouth, so he had opportunity to alter it. [ 36 ] Fourthly, they knew Geraldine had a long-standing mental illness, requiring intermittent hospitalization, such that she may not have noted alterations, or may have been susceptible to undue influence by R.

Todd. [ 37 ] Fifthly, Rodney had told Pamela that his will provided for the matrimonial home to be divided equally amongst the four children. [ 38 ] Not only did they have reason to oppose the application, they brought in the evidence of the attesting witnesses that one would have expected the personal representatives to have provided. Geraldine knew who the witnesses were, their contact information and that they were alive and well. They still lived at the same place in Yarmouth County, where they lived when they signed as witnesses, and had the same phone number. That information was on the copy of the will.

Prior to the first court appearance, following receipt of the application documents, Pamela, in an email to Geraldine’s lawyer, dated November 29, 2019, stated: “One question regarding the presenting of evidence to support our objections: The lawyer we consulted mentioned that if the witnesses to the will are alive the Probate Judge will request their affidavit swearing the validity of the will (whether or not we objected) – why have they not been approached by your office?” [ 39 ] Despite that question, and Geraldine already having been aware of their availability, Geraldine did not contact them to provide affidavits.

She only questioned them at discoveries and left it to the Objectors to obtain affidavits form them. [ 40 ] During the hearing of the application, unaware of the November 29, 2019 email, the Court questioned Counsel for Geraldine as to why no affidavit had been obtained from the witnesses, as that is generally one of the primary steps taken in preparation for an application for proof in solemn form, and even in submitting an original will for probate. His response was that it was an oversight on his part and ought not be attributed to Geraldine.

The content of Pamela’s email, and the fact Geraldine did not obtain an affidavit from them even after discovering them, even though they were willing to provide one, suggests that there was a deliberate decision on her part to circumvent their evidence.

[ 41 ] The evidence of the attesting witnesses was very important to a proper determination of whether the copy of the will submitted for proof in solemn form was a true copy of Rodney’s original will. Without it, and the evidence of R. Todd’s motive and opportunity to alter the will, the Court would have been left with a distorted picture of the circumstances. There would have been no reason to question the validity of the will at all. [ 42 ] Geraldine had a duty, as personal representative of the Rodney’s estate, to present a full and balanced picture of the circumstances.

Her duty was to ensure Rodney’s true testamentary intentions were respected, not to attempt to tailor the evidence to best support her wishes as primary beneficiary and sole residuary beneficiary. [ 43 ] Instead, it is the Objectors who stepped up, and brought the contradictory evidence forward. Wayne did so at the risk of the will being declared invalid, which would have meant that he may have to return his father’s guns and rifles, which had been expressly devised to him in the will. Both did so at the risk that, if the will was declared invalid, Rodney’s estate would devolve upon intestacy.

The only asset in the Estate that would require a grant of administration to transfer title was the matrimonial home. The provisions of Nova Scotia’s Intestate Succession Act are such that, more likely than not, Geraldine would have received the entire home in any event. Even if there had been another will, the combination of Nova Scotia’s Matrimonial Property Act and Testators’ Family Maintenance Act , would likely also have resulted in Geraldine obtaining most, or all, of the matrimonial home.

Yet, despite, little hope of ultimate gain, and, for Wayne, possibly some loss, they used their resources to present evidence to the Court that the personal representative ought to have presented. [ 44 ] It was in the public interest, and “necessary to ensure the proper administration of the estate”, that the Court have this contradictory evidence, to scrutinize the circumstances, and to make a proper determination on the validity of the will. [ 45 ] The offer to settle presented by Geraldine, on March 11, 2020, was that she would not seek costs from the Objectors if they withdrew all claims and objections before March 31, 2020.

She did not offer to place, before the Court, any of the contradictory evidence raised by the Objectors. It would still have left the Court with an incomplete and distorted picture of the circumstances. Given their purpose for opposing the application, It was reasonable for the Objectors to reject the offer. [ 46 ] All of these factors support a finding that Geraldine’s costs, and any costs the Objectors’ are entitled to, ought to be paid out of the Estate. [ 47 ] There was information regarding “family strife” having started in 2014. It was in June 2014 that R.

Todd had his lawyer write a letter to Geraldine’s sister (who had witnessed the will). It was in response to her voicing her opinion that he was exercising undue influence on Geraldine and not looking after her best interests. In the letter, he alleged that her comments were defamatory and threatened court action. The letter also noted that R. Todd had Geraldine’s power of attorney and he would restrict access if Geraldine’s sister continued to upset Geraldine. That letter, and her issue with R. Todd, was a factor affecting the assessment of the sister’s evidence. There was also evidence that R.

Todd discouraged Pamela from coming home from Alberta to see her mother. However, Pamela and Wayne both presented their evidence in a professional, fair and balanced manner. They volunteered that, though R. Todd had motive and opportunity to alter the will, whether he did or not was mere speculation. They stated, more than once through the process, that they only wanted the Court to have all of the facts.

In addition, they noted that their father had included the fourth sibling as an equal beneficiary of the residue, if Geraldine pre-deceased him, even though she had been estranged from the family since she was a teenager. They highlighted how that showed him to be fair minded. They wanted to ensure his true intentions were honoured. [ 48 ] Therefore, I do not find that their opposition to the application was motivated by “extra-legal considerations” such as “bad feelings” towards R.

Todd or Geraldine. [ 49 ] Even if I did, it would be to a very minor degree and not outweigh the numerous and more weighty factors supporting payment of all costs out of the Estate. [ 50 ] Considering these points, the costs of all parties, to the extent established as being proper, ought to be paid out of the estate. Costs of Self-Represented Parties [ 51 ] The factors in this case would justify an award of party-and-party costs to the Objectors if they had incurred the expense of a lawyer.

However, the fact that they were self-represented raises a question regarding whether, on the evidence presented, it is proper to award them costs. [ 52 ] They said they consulted lawyers. However, they did not provide evidence of any fees paid. [ 53 ] They claim 100 hours each, at $50 per hour, being their average rate of pay in their regular employment. However, they did not provide evidence of having foregone work income to free them up, or used vacation time, to dedicate time to preparing and filing materials for the application for proof in solemn form. [ 54 ] Our Court of Appeal, in Crewe v.

Crewe , 2008 NSCA 115 , at paragraph 17 , ruled that the principles relating to ordering costs payable to self-represented persons include the following: - It is “a potentially useful tool to encourage settlements and to discourage or sanction inappropriate behaviour”. - A self-represented litigant, even a successful one, does not have “an automatic right to recover costs”. - “The trial judge maintains a discretion to make the appropriate costs award, including denial of costs.” - “[S]elf-represented litigants, be they legally trained or not, are not entitled to costs calculated on the same basis as those of the litigant who retains counsel.”

- “The self-represented litigant should not recover costs for the time and effort that any litigant would have to devote to the case.” - “Costs should only be awarded to those lay litigants who can demonstrate that they devoted time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation and that, as a result, they incurred an opportunity cost by forgoing remunerative activity.” [Emphasis by underlining added.] [ 55 ] In that case, the successful litigant had “lost considerable time from her work” and the other party’s late filing of documents had to be censored.

The successful litigant was awarded $800 in costs. [ 56 ] The Court in Salman v. Al-Sheikh Ali , 2011 NSSC 30 , after having quoted from paragraph 17 of Crewe , at paragraph 48 , cited an earlier Alberta Court of Appeal decision which concluded that it was “not necessary to prove actual value of any lost opportunity”, but noted that time lost from work was a relevant factor. One spouse in the Al-Sheikh Ali couple was not employed. The other had “used vacation time rather than lose paid time from work”. That couple was awarded party and party costs of $4,000.

It had been a 5.5 day trial, with an amount involved of $220,000. The other defendant couple, which had counsel, was awarded $65,000 in lump sum party and party costs. So, the self-represented couple received only slightly more than 6% of the proper costs of the couple represented by counsel. All defendants had been successful. [ 57 ] In the case at hand, the only real asset in the Estate was a house assessed at $132,500. I note that Geraldine and Rodney had been married 48 years when he passed. Under the Matrimonial Property Act , she would presumptively be entitled to 50%, leaving only $66,250 in the Estate.

Using that as the amount involved, and using the basic scale in Tariff A, for a one day trial, would produce Tariff Costs of $11,750. 6% of that is only $705. That is no where near the $10,000 requested. [ 58 ] The Objectors were not successful. They have not shown that they sacrificed work or vacation to do the preparatory work that would normally be done by a lawyer. Further, they could not have spent 100 hours each on the preparatory work alone. A substantial portion of their estimate must have been for travel and court attendances.

That is time expended by a litigant irrespective of whether they have a lawyer. They would have had to have provided the information for their affidavits to their lawyer, in any event, if they had hired one. Even if uncontested, the application had to proceed. Given that the copy of the will could not be a true copy, if the evidence of the attesting witnesses was accepted, and that the attesting witnesses were credible, it is not a matter that could reasonably be expected to “settle”; and, it was reasonable and appropriate for Geraldine to pursue the application, in which she was ultimately successful.

Therefore, the objective of encouraging settlement does not come into play. [ 59 ] On the other hand, the Objectors were instrumental in bringing important evidence before the Court, that Geraldine was hoping to circumvent. If there had also been evidence that they lost paid work, or used up paid vacation, to prepare their materials objecting to the application, or to prepare for the application itself, that could easily have been sufficient to justify a costs award payable to them.

However, the objective of discouraging Geraldine’s improper behaviour in attempting to circumvent evidence that a personal representative ought to have brought, can be accomplished by requiring her to pay her own costs and disbursements, plus the Objectors’ recoverable disbursements, out of what would have been her share of the Estate. [ 60 ] Considering the points and evidence presented, this is not a case in which I should exercise my discretion to order costs payable to the self-represented litigants.

Conclusion [ 61 ] Based on the foregoing, I conclude and order that which follows, as it does justice between the parties in the circumstances of this case. [ 62 ] Geraldine’s costs are to be paid out of the Estate, not by the Objectors. [ 63 ] Since Geraldine is the sole residuary beneficiary, the costs will all ultimately come out of her share of the Estate in any event. Therefore, she shall have her costs on a solicitor-client basis even though she fell short of her duties as personal representative. [ 64 ] The disbursements she requests totalling $1,133.79 are reasonable and necessary disbursements.

Those are to be paid out of the estate as well. [ 65 ] There are no costs payable to the Objectors. [ 66 ] The disbursements requested by the Objectors, to cover the travel expenses associated with attending court, are expenses that any litigant incurs, irrespective of whether they are represented by a lawyer. In addition. Pamela could have chosen to appear virtually, instead of travelling from Alberta, especially since the hearing occurred during the Covid-19 pandemic, which necessitated special precautions because of her personal attendance.

Therefore, I disallow the request for personal travel-related disbursements. [ 67 ] The other disbursements they request, being $100 each for fees related to postage and swearing of affidavits, are necessary and reasonable disbursements. They were incurred as part of their efforts to bring the contradictory evidence required by the Court to properly determine the application. [ 68 ] Therefore, the Estate shall be required to pay $100 to each of the Objectors, Pamela and Wayne, to cover their disbursements. Order [ 69 ] I ask Counsel for Geraldine to prepare the Order. Pierre Muise, J.