Walcott v. Walcott Estate, 2023 NSSC 293

SUPREME COURT OF Nova Scotia Citation: Walcott v. Walcott Estate, 2023 NSSC 293 Date: 20230829 Docket: Sydney No. 460559 Registry: Sydney Between: Georgina Lynora Walcott, for the Estate of Lynora Walcott Applicant v. Rita Walcott, Gerald Walcott, Rebecca Walcott Respondents Cost Decision Judge: The Honourable Justice Patrick J.

Murray Written Decision: August 29, 2023 Counsel: William Leahey for Georgina Walcott and the Estate Darren Morgan for Rita Walcott and Gerald Walcott Rebecca Walcott, self-represented By the Court: Introduction [ 1 ] This is a decision on costs in relation to the Estate of Lynora Walcott. Ms. Lynora Walcott passed away without a valid Last Will and Testament.

Her daughter, Georgina Walcott, was appointed to represent her Estate as Administrator. [ 2 ] Following her death and after the Estate was opened two (2) of Lynora’s children, Rita and Joseph, as well as Lynora’s granddaughter, Rebecca Walcott, filed a claim for unjust enrichment against the Estate for services they rendered to their mother and grandmother during her lifetime. [ 3 ] The Estate subsequently filed an Application seeking an order that the claims of Rita, Joseph and Rebecca be dismissed, claiming they were without merit. [ 4 ] In a decision rendered on April 17, 2023, this Court granted the claims in part by awarding each of the three

(3) Claimants the sum of $15,000, reserving my decision on costs. [ 5 ] In addition to Georgina Walcott, the other heirs on intestacy are Joseph Walcott and Charlotte Walcott (Deceased). Further facts and details pertaining to the heirs and the Estate are delivered in my earlier decision.

Issue [ 6 ] What is a cost award that will do justice as between the parties? Position of the Parties Positions of the Respondents, Rita Walcott and Gerald Walcott [ 7 ] The Respondents, through their legal counsel, Mr. Morgan, argue that as the successful parties the Claimants are clearly entitled to costs, citing Civil Procedure Rule 77.03. The Probate Act and Regulations authorize the granting of costs in a contested matter. The Claimants provided a substantial amount of evidence to support each of their claims.

The Respondents, Rita and Gerald Walcott, submit that the Administrator, Georgina Walcott, was highly dismissive of their claims in her affidavit and in her testimony. Among other reasons, these Claimants say they are entitled to costs as contained in Tariff “A” of Rule 77. [ 8 ] Rita and Gerald Walcott each claim costs of $9,000. in party and party costs. In doing so, they have put forward the decision of MacDougall, J., in Hopgood v. Hopgood Estate , 2020 NSSC 18 .

Position of Rebecca Walcott [ 9 ] Rebecca Walcott submits that she felt stressed and intimidated through the entire process and was made to feel “guilty” in making her claims. The services she provided were able to keep her grandmother in her own home for as long as she was. She states further, that in doing so, she lost wages from work. [ 10 ] Rebecca seeks the sum of $7,000.00 in costs.

Position of the Applicant Estate [ 11 ] In its cost submissions, the Estate argues the position taken by the Administrator had a basis in law because the weight of the evidence showed the three Claimants did not expect to be paid for their services at the time they were rendered or at any point up to Lynora’s death. [ 12 ] The Estate’s position as contained in its brief includes the following: (

a) Throughout the course of the hearing the Estate took the position that regardless of the quantum of services rendered by each of the three Claimants to the deceased during her lifetime, none of the three Claimants expected to be paid for their services at the time they were rendered or indeed at any point up until the date of death of the deceased intestate. (

b) All three of the Respondents admitted during their evidence that they had performed services essentially out of love and affection for the deceased Lynora Christina Walcott and because they were asked to do so. (

c) Although this Court has decided that based on the evidence and the applicable law the Respondents are each entitled to $15,000., the Estate maintains that its position was reasonable based on the facts and applicable law. [ 13 ] It is the position of the Estate that there is a “principled exception” to granting an award of costs to the Claimants, even though they were successful.

From the point of view of the Administrator, she states she, “had family members on each side of the question who took different positions”. [ 14 ] The Estate submits it relied on the case law, and in particular, the notions of “donative intent” and “set-off” (in the case of Rita and Rebecca), stating this was a “reasonable position” for the Estate to take based on the evidence available to it. [ 15 ] The Estate, through its legal counsel, Mr. Leahey, acknowledges that a decision not to award costs must be for a “very good reason”. The Administrator, he submits, had to make a decision on “which pathway” to take.

The Law Analysis [ 16 ] With respect to the Estate’s position in relation to a difficult pathway, with family on both sides of the issues, the Respondents had this to say in their brief: Again, with all respect, this position appears to characterize Georgina Walcott as being conflicted due to having family members on both sides of the issue in this case. However, it is respectfully submitted that the evidence submitted both prior to and during the hearing of this matter strongly indicates that any attempt to suggest that such conflict existed lacks credibility.

The evidence clearly showed that Georgina Walcott did not have a close or warm relationship with any of the claimants and was clearly and consistently taking a position adverse to theirs throughout the course of this proceeding. [ 17 ] Further, the Claimants argue that the Estate through its Administrator, Georgina Walcott, attempted to minimize the contributions made (by them) that brought significant enrichment to the life of the late Ms. Walcott.

They argue the Estate’s position was highly dismissive indicating that such position is reiterated in the Estate’s closing submissions on costs. [ 18 ] Rita and Gerald Walcott submit their claims were adjudicated on their merits and were found to have merit. The evidence, they say, clearly illustrated what each of the Claimants did for the late Ms. Walcott. [ 19 ] The Respondents argue that whether the Administrator had an honest belief that she was correct in opposing the claim, is not the standard to be applied. If that were the case, they say, “there would almost never be a cost award made in any case”.

[ 20 ] I concur with the Respondents, that is not the standard. [ 21 ] That said, whether an action or an application is frivolous or without merit is a valid consideration in determining an appropriate cost award. In addition, a dispute among heirs entitled to share in the distribution of an estate is a relevant consideration for an Administrator. [ 22 ] Further, as noted by McDougall, J., another factor is whether it was the testator’s actions that gave rise to the issues in dispute. That is not the case here. (See Hopgood at para. 36 , in reference to Casavechia v.

Noseworthy , 2015 NSCA 56 , and Prevost Estate v. Prevost , 2013 NSCA 20 ). [ 23 ] The issue of reasonableness is relevant to whether an executor or administrator should be held personally liable for payment of costs assessed, or whether these costs are payable by the Estate. [ 24 ] The sole issue before me is what is an appropriate award of party and party costs.

Costs are a reality of litigation, and litigants, especially those who initiate it, must be aware that they are subjecting themselves and the responding parties to legal costs for which they could be held liable, in whole or in part. [ 25 ] It is generally well known that costs, while discretionary, are a reality in matters governing court proceedings. Decision [ 26 ] There is little doubt that Georgina Walcott personally took a definite position in contesting these claims. Her affidavit evidence sets out that the services performed are what any person would do for their relative.

Further, the Estate pointed out that, Rita and Rebecca, in particular, benefited from the late Ms. Walcott in terms of the home and other features. [ 27 ] It is clear the three Respondents were successful, the Court finding that there was significant evidence to support their claims. [ 28 ] The Estate asks the Court not to award costs, stating there was a basis in law, “donative intent”, that supported its position that there was no entitlement, regardless of how much these services enriched the life of the late Ms. Walcott.

This issue was addressed in my reasons for decision, including a reference to the Currie decision ( Currie v. Sheilds Estate , [1993] P.E.I.J. No. 128 ), relied upon by the Applicant. [ 29 ] This is a decision on costs arising from that decision.

I will not repeat my reasons for decision, and instead focus on the issue of costs that is before me at this time. [ 30 ] Having considered the foregoing submissions, I am not satisfied that there should be no costs awarded based on the “principled exception” as submitted by the Applicant. [ 31 ] There are, however, a couple of considerations present here that are relevant to the decision on costs and they are: 1. The amount awarded compared to the total amount claimed; and 2.

That the total amounts claimed made up all or substantially all of the total value of the Estate. [ 32 ] Rule 77.07(1) states that a judge who fixes costs may add an amount to or subtract an amount from tariff costs. An example provided in Rule 77.07(2)(

a) of a factor that may be considered in this regard is, “the amount claimed in relation to the amount recovered”. [ 33 ] In my decision, I summarized the assets of the Estate. In addition to the home at 21 Gordon Street, Glace Bay, there were the two Bank of Nova Scotia accounts of $140,675.08 and $4,89.05, for a total monetary value of $144,864.13. The total of the three claims amounted to $155,000. [ 34 ] In this case, Rita Walcott claimed the sum of $55,000; Gerald Walcott claimed the sum of $40,000.; Rebecca Walcott claimed the sum of $60,000.

The Claimants testified that these sums were arrived at in discussion with a solicitor. [ 35 ] Each were awarded the sum of $15,000 by the Court. [ 36 ] These factors, in my view, are relevant in determining the costs to be awarded. The Claimants, while successful, received considerably less than the amount each were seeking.

In addition, faced with claims that would effectively deplete the Estate is something that would inform an Executor or Administrator’s decision whether to oppose the claims. [ 37 ] I have concluded that while the Claimants are entitled to an award of costs, the amounts provided for in the Tariff should be reduced. [ 38 ] As a result, costs are awarded as follows to the Respondents: 1. Gerald Walcott - $5,500; 2. Rita Walcott - $5,500; and 3.

Rebecca Walcott - $3000; for a total of $14,000. [ 39 ] Although Rebecca did not incur legal fees, she handled herself with decorum throughout the hearing, and was efficient in the presentation of her claim, notwithstanding her lack of legal training. While I do not have an accounting of wages lost, I find this sum to be appropriate for a hearing that lasted two and a half days in addition to the numerous hearings held where directions were provided.

[ 40 ] These costs shall be payable by the Estate and not the Administrator personally. Murray, J.