Kirk v Kirk, 2017 SKCA 97

Court of Appeal for Saskatchewan Docket: CACV3022 Citation: Kirk v Kirk , 2017 SKCA 97 Date: 2017-11-08 Between: Marguerite Kirk and Paul Kirk Appellants/Respondents by Cross-appeal (Applicants) And Gerald Kirk, Celeste Barnes and Dale Linn, Q.C. in his capacity as Interim Administrator of the Estate of Anastasia Kirk Respondents/Appellants by Cross-appeal (Respondents) Before: Richards C.J.S., Caldwell and Schwann JJ.A. Disposition: Appeal allowed; Cross-appeal quashed Written reasons by: The Honourable Chief Justice Richards In concurrence: The Honourable Mr.

Justice Caldwell The Honourable Madam Justice Schwann On Appeal From: QBS 512 of 2013, Saskatoon Appeal Heard: October 20, 2017 Counsel: Jordan Hardy for Marguerite Kirk Paul Kirk appearing on his own behalf Gerald Kirk appearing on his own behalf Celeste Barnes appearing on her own behalf Robert Kennedy, Q.C., for Dale Linn, Q.C. in his capacity as Interim Administrator of the Estate of Anastasia Kirk Richards C.J.S. I. Introduction [ 1 ] This appeal is rooted in a complex dispute among the four children of Anastasia Kirk.

They are unable to agree how the assets in her estate should be handled and distributed. [ 2 ] After a number of proceedings had been commenced, the Kirk siblings reached an agreement about how to deal with various matters in contention amongst them. The appellants, Marguerite and Paul Kirk, subsequently brought an application in the Court of Queen’s Bench seeking an order giving effect to the agreement. The Chambers judge found the agreement to be legally binding but then went on to determine several “implementational” issues associated with it.

Marguerite and Paul appeal from that decision and argue the Chambers judge improperly addressed and dealt with three specific implementation-type matters without giving them a chance to present evidence or make submissions with respect to those matters. The respondents, Gerald Kirk and Celeste Barnes, cross-appeal. They argue that the agreement in question is not legally valid and request that this Court order the probate of a testamentary document they favour. [ 3 ] I conclude, for the reasons set out below, that the appeal of Marguerite and Paul should be allowed.

Although doubtless motivated by a good-faith desire to move a difficult set of matters toward resolution, the Chambers judge decided several questions concerning the meaning of the agreement without affording Marguerite and Paul an opportunity to put forward their positions. As a result, part of his Fiat must be set aside. As also explained below, the cross-appeal of Gerald and Celeste must be quashed on the basis that it is simply ill-founded. II. background [ 4 ] The full factual and procedural background of this appeal is rather involved.

I will recount only as much of it as is necessary to bring the issues before the Court into focus. [ 5 ] Anastasia Kirk passed away in 2013. She had four adult children, the appellants, Marguerite and Paul Kirk, and the respondents, Gerald Kirk and Celeste Barnes. Solely for the purpose of clarity and economy of expression, I have elected to refer to the children by their first names and will do so for the balance of these reasons. [ 6 ] Anastasia Kirk’s estate is comprised of some significant assets. Disagreements among the Kirk siblings led to the commencement of a number of legal proceedings.

Dale Linn, Q.C., a party to this appeal, was appointed administrator pendente lite in November of 2014. [ 7 ] The various points in dispute between and among the four Kirk siblings included: (

a) the legal status of various testamentary documents authored by their mother purporting to give her estate to Gerald to the exclusion of Marguerite and Paul (and sometimes Celeste); (

b) the question of whether the estate should pay the legal fees incurred in connection with the ongoing litigation;

(

c) the ownership and valuation of a registered retirement income fund (RRIF) held by the estate; (

d) the potential improper administration of the estate of Oris Kirk, Anastasia’s husband and the Kirk siblings’ father; and (

e) how a Vancouver residential property owned by the estate should be dealt with. [ 8 ] On November 4, 2016, a number of applications were scheduled to be heard by the Chambers judge. These were: (

a) an application on behalf of Gerald to enforce the terms of a putative settlement alleged to have been entered into in early 2016; (

b) an application on behalf of Paul (supported by Marguerite) requiring HSBC Bank Canada and HSBC Investment Funds (Canada) Inc. to produce documents relevant to the potential misadministration of the estate of Oris Kirk; (

c) an application on behalf of Marguerite (supported by Paul) requiring Gerald to submit to cross-examination on the potential misadministration of the estate of Oris Kirk; and (

d) an application on behalf of the Administrator for directions with respect to the Vancouver property. [ 9 ] At the suggestion of the Chambers judge, the Kirk siblings began settlement negotiations and they ultimately signed a settlement agreement (Agreement) that evening.

The Agreement addressed a number of issues including the division of their mother’s estate, an advance to Celeste from her share of the estate to allow her to address a pressing personal financial problem, distribution of the RRIF, the listing and sale of the Vancouver property, and the payment of legal fees. [ 10 ] The key features of the Agreement are reproduced below: The parties hereby agree to resolve all issues raised in SK QB file 2013-512; 2015-1362; 2015-195; 2016-813; the current BC action brought by Marguerite and Paul Kirk respecting a Wills Variation for the Oris Kirk Estate, on the following terms: 1.

The estate of Anastasia Kirk is to be divided equally between the parties, with the exceptions listed below. All real and personal property is to be liquidated. The personal property is to be sold by the administrator at a recognized public auction house with notice to the parties or at appraised value. No disbursements shall be made to any of the parties from the estate other than as provided herein and upon final distribution. 2. The parties hereby agree to the immediate release of the proceeds of HSBC RRIF account #1151687 to Gerald Kirk upon execution of this agreement.

The parties agree to endorse a consent order for such release within 5 days of execution of this agreement. Gerald Kirk is entitled to half the value of the RRIF. The other half is to be divided equally between the remaining parties. To reflect this, the value of half of the RRIF is to be deducted from Gerald Kirk’s ultimate share plus 5% interest per annum on half the value of the RRIF and distributed to the other beneficiaries when the estate is concluded. 3. The legal fees and Paul’s travel costs associated with court appearances to date will be paid by the estate on an immediate basis. 4.

The North Vancouver property, 525 E. St. James Rd., will be listed for sale for no less than $1.4 million. A majority of the parties (3 out of 4) must agree on the real estate agent and the sale price. 5. Upon completion of this agreement, including endorsement of the court, steps will be taken to immediately vacate the Certificate of Pending Litigation registered against the above Vancouver property.

The parties agree to formally discontinue the above mentioned actions within 90 days of executing this settlement agreement, save for QBS 512 of 2013 which shall remain extant until conclusion of the administration of the Estate of Anastasia Kirk. All associated costs herein will be borne by the Estate. 6. Gerald Kirk is responsible for all costs associated with removing his personal property from the North Vancouver house. 7. Celeste Barnes is to receive the advance already negotiated and payable to the Bank of Montreal.

The parties will sign the consent order forthwith as amended on November 4, 2016. … [ 11 ] As is self-evident, various steps were required to effectuate the terms of the Agreement. As a result, Marguerite and Paul discontinued a wills variation application in British Columbia and removed the certificate of pending litigation from the Vancouver property. Celeste was paid the advance on her share of the estate. [ 12 ] Things then broke down. Marguerite and Paul say Celeste and Gerald stopped communicating once Celeste obtained her advance. Celeste maintains there were unwarranted problems with respect to the RRIF.

Divining the true particulars of all of this is not especially significant for present purposes. What is significant is that the Administrator advised he needed a court order giving him the authority to effect the Agreement. A consent order could not be secured and, in the end, Marguerite (supported by Paul) brought an application before the Chambers judge to allow for the enforcement of the Agreement. That application underpins this appeal.

III. the decision of the chambers judge [ 13 ] The application filed by Marguerite asked, in its effect, that the Chambers judge confirm the legally binding nature of the Agreement. In this regard, Marguerite sought general orders (

a) that the Administrator had the authority to liquidate real and personal property in accordance with the terms of the Agreement, and (

b) that the Administrator could distribute the estate as per the Agreement. In the interests of greater certainty, she also sought additional and more specific orders that tracked the language of some of the

individual paragraphs of the Agreement. [ 14 ] The application was heard on January 19, 2017. Celeste and Gerald took the position that the Agreement was invalid. Celeste submitted, without filing an affidavit, that she had been forced to enter the Agreement while she was under financial duress. However, unknown to Marguerite and Paul at the time, she had sent a five-page letter dated January 18, 2017, to the Chambers judge wherein she had laid out the factual and other grounds for her duress argument.

Gerald claimed the Agreement was too vague to be enforceable. [ 15 ] This was the first time Marguerite and Paul learned that Gerald and Celeste were taking the position that the Agreement was not binding. Marguerite and Paul responded by indicating that, if anything was to be made of the submissions about the validity of the Agreement, i.e., if the validity of the Agreement was going to be an issue, they needed an opportunity to file affidavits explaining their side of the story. [ 16 ] The Chambers judge released his Fiat on January 24, 2017.

He characterized the core issue before him as being whether the parties had entered into a binding and enforceable agreement. The Chambers judge had little difficulty answering that question in the affirmative. [ 17 ] With respect to Celeste’s concerns, the Chambers judge determined that her long-standing personal mortgage difficulties did not advance her position because impecuniosity and financial pressures are not sufficient to engage the doctrine of duress.

He also noted that Celeste’s position was illogical in that she had appeared before him prepared to support Gerald’s application to have an earlier settlement agreement approved by the Court, even though that earlier agreement was less generous to her than the Agreement. [ 18 ] The Chambers judge also rejected Gerald’s view that the Agreement was fatally defective because of vagueness. He concluded that any disagreement as to the scope or meaning of the terms of the Agreement merely went to its

interpretation, not to the issue of whether there had been an enforceable meeting of minds in the first place. [ 19 ] Having decided that the Agreement was valid and enforceable, the Chambers judge then went on to deal with a series of matters he described as relating to the implementation of the Agreement. He began by considering whether he had the authority to make such orders. After concluding he could go in that direction, the Chambers judge commented on the aspect of the Agreement dealing with legal fees.

He then made orders dealing with a variety of matters including the listing and sale of the Vancouver property, and the payment of costs incurred in connection with the discontinuance of proceedings in British Columbia. IV. analysis [ 20 ] There are two main matters before the Court. The first is Marguerite and Paul’s appeal. The second is Gerald and Celeste’s cross-appeal. I will begin by dealing with the appeal. A.

The Appeal [ 21 ] Marguerite and Paul submit that the decision of the Chambers judge must be set aside to the extent it goes beyond affirming the legal validity of the Agreement and deals with certain questions of implementation. They say such questions were not a part of their application and were not addressed by the evidence or in argument.

In this regard, they rely on the principle of audi alteram partem and say they were denied the right to be heard on the issues in question. [ 22 ] In addition, Marguerite and Paul contend that the Chambers judge erred in considering Celeste’s January 18, 2017, letter in his deliberations without ensuring they had seen it. In the end, I find it unnecessary to deal with this submission.

As explained below, Marguerite and Paul’s audi alteram partem argument carries the day and determines the outcome of this appeal regardless of what might or might not be the merits of their concerns about Celeste’s letter. [ 23 ] Let me turn, therefore, to the audi alteram partem issue. The aspects of the Chambers judge’s decision that are challenged by Marguerite and Paul on this front are explained below: (

a) Legal fees – paragraph 3 of the Agreement provides that “[t]he legal fees and Paul’s travel costs” are to be paid by the estate on an immediate basis. Marguerite and Paul point to the Chambers judge’s analysis, at paragraphs 18 to 20 of his Fiat, that the Agreement is limited to Paul’s legal fees only and that, because Paul is self-represented, he has no such fees. Marguerite and Paul also note the Chambers judge’s finding at paragraph 20 of his Fiat that legal fees are to be assessed for reasonableness and can be taxed. They disagree with the Chambers judge on this point and say they had no opportunity to make submissions on these issues. (

b) The Vancouver property – the Agreement says the Vancouver property will be listed for sale for no less than $1.4 million dollars and that a majority of the siblings (three out of four) must agree on the real estate agent and the sales price. Marguerite and Paul note that the Chambers judge’s Fiat goes beyond the terms of the Agreement and stipulates, at paragraph 22(4)(b), that, if three out of four siblings cannot agree on the realtor or the sale price, the Administrator will be able to select the realtor and “make all decisions on listing and sale price in his sole discretion”. They say they had no chance to make known their positions on this twist on the terms of the Agreement. (

c) Costs – paragraph 5 of the Agreement provides that “[a]ll associated costs” relating to the discontinuance of actions and vacating the certificate of pending litigation on the Vancouver property is to be “borne by the Estate”. Marguerite and Paul say the Chambers judge erred in ordering, at paragraph 22(4)(

c) of his Fiat, that only “direct” costs were to be covered in this way. Again, they submit that they had no chance to speak to this question. [ 24 ] The Chambers judge appeared to recognize that, in choosing to deal with what he called “implementation orders”, he was moving outside of the boundaries of what the parties had put before him. Indeed, at paragraphs 14 to 17 of his Fiat, the Chambers judge directly addressed the question of his jurisdiction to make these orders. He answered it by referring to ss. 9(4) and 29(1) of The Queen’s

Bench Act, 1998, SS 1998, c Q-1.01, and Rule 1-4 of The Queen’s Bench Rules. They read as follows: The Queen’s Bench Act, 1998 9 …

(4) Every judge has jurisdiction to hear and determine any action or matter in the court, including actions or matters in the Family LawDivision. … 29(1) The court shall grant to the parties to an action or matter all remedies to which the parties appear to be entitled with respect to anylegal or equitable claims that they have properly brought forward so that: (

a) all issues in controversy between the parties are determined as completely and finally as possible; and (

b) a multiplicity of legal proceedings concerning the issues is avoided. The Queen’s Bench Rules 1-4(1) The Court may do either or both of the following: (

a) give any relief or remedy described or referred to in The Queen’s Bench Act, 1998; (

b) give any relief or remedy described or referred to in or under these rules or any enactment.

(2) The Court may grant a remedy whether or not it is claimed or sought in an action on providing the parties with: (

a) a notice of its intention to grant a remedy; and (

b) an opportunity to respond.

(3) Nothing in these rules prevents or is to be interpreted as preventing the Court, as a superior court, from exercising its inherentjurisdiction. [25] The Chambers judge found the authority to go beyond what the parties had argued by referring to these provisions and, mostparticularly, by referring to Rule 1-4. He explained his reasoning in these words: [16] Rule 1-4 makes it clear that an effective, efficient and credible system of remedies to enforce orders and judgements and anapproach to resolving claims in a timely and cost effective manner is foundational to the proper administration of justice.

This sameprinciple applies to contracts or agreements made for the purposes of resolving claims. It is a basic principle of the rule of law thatcontracts entered into must be enforced. [17] Given the power and authority the Act and Rules have reposed in me, I have the jurisdiction to make the findings and orders thatI do.

To achieve a timely and cost-effective resolution to the parties’ dispute I must both interpret the Memorandum and makeimplementation decisions that will give effect to the parties’ agreement without restricting the Administrator’s authority and ability tomake decisions in the best interests of the estate. [26] Given the circumstances confronting him, it is easy to understand the Chambers judge’s motivation in deciding to moveforward as he did.

The parties had become bogged down in a variety of proceedings such that, to use the Chambers judge’s ownreference, their legal entanglements had begun to resemble Dickens’ Jarndyce v Jarndyce. Moreover, as the case management judge, heperhaps felt some special obligation to untangle the dispute and pull it in the direction of some sort of finish line. [27] The reality, however, is that the Chambers judge went too far in his effort to help bring the matters before him to a resolution.Rule 1-4 does indeed indicate that a judge may grant a remedy whether or not it is claimed or sought in the proceedings.

This, clearly,reflects the view that judges have a responsibility to ensure that a multiplicity of proceedings is avoided if possible and that controversiesare resolved as fully, finally and fairly as circumstances allow. [28] Nonetheless, and at the same time, Rule 1-4 also expressly preserves and acknowledges the rights of parties to be heard. Aswill be recalled from paragraph 24, above, Rule 1-4 empowers a judge to grant a remedy that has not been claimed or sought but only if(

a) notice of his or her intention in this regard has been given to the parties, and (

b) the parties had been afforded an opportunity torespond. [29] This important qualifier on a judge’s right to grant unsolicited remedies reflects the principle that a fair hearing is one wherethe parties know the case they have to meet and have an opportunity to present evidence and make submissions in relation to it. This is afundamental concept and it cannot be sacrificed in the quest for efficiency or the speedy resolution of disputes.

See, for example: Scott vVanston, 2016 SKCA 75 at para 70, [2016] 9 WWR 256; Koback v Koback, 2013 SKCA 91 at para 58, [2013] 10 WWR 491; Whelan vWhelan, 2007 ABCA 282 at paras 5–6, 43 RFL (6th) 274; Parlee v McFarlane (1999), (NB CA), 171 DLR (4th) 292(NBCA) [Parlee]. [30] A helpful example of this idea in action is found in Parlee. In that case, the trial judge determined the line between thelitigants’ properties on the basis of a purported conventional boundary. But, this conventional line had not been pled, or raised by theparties or the judge during the course of the trial.

Justice Drapeau (as he then was) allowed the appeal for the Court of Appeal of NewBrunswick by noting:

[35] I am satisfied that the Parlees were not given any opportunity to challenge the application of the doctrine of conventionalboundary lines. I find the following observation by Hoyt C.J. in King et al. v. Canada (Attorney General) et al. (1997), (NB CA), 187 N.B.R. (2d) 185 (N.B.C.A.), at p. 196, to be particularly apt in the circumstances: Judges must resist the temptation to raise new issues, particularly those that are determinative, without giving the parties an opportunityto respond. ... [36] This obligation extends to all proceedings, be they criminal, quasi-criminal or civil.

It flows from the fundamental right that alllitigants have, namely the right to be heard before judgment is pronounced. See R. v. Peter Paul. (T.) (indexed as R. v. Paul (T.P.))(1998), (NB CA), 196 N.B.R. (2d) 292, 158 D.L.R. (4th) 231 (C.A.) at pp. 312-13. [31] Turning back to the present case, the picture of what transpired at the hearing before the Chambers judge is perhaps notperfectly clear. Nonetheless, the representations of the parties, and the Chambers judge’s Fiat itself, indicate that the Chambers judgeundertook, on his own initiative, to resolve a number of questions about the

interpretation and implementation of the Agreement withoutproviding the parties with notice of his intentions or an opportunity to make submissions. In the result, some aspects of his decisioncannot be allowed to stand. [32] That said, I should perhaps note here that counsel acting for the Administrator suggested there may not be an audi alterampartem problem on the facts of this case because the parts of the Chambers judge’s Fiat in issue are not “substantive” in nature. I do notaccept this submission.

The question of whether Marguerite and Paul are entitled to be compensated out of the estate for their legal feesis surely one of substance, as is the question of whether they are entitled to be fully indemnified in respect of those fees only to the extentsuch fees are deemed reasonable. The same holds true for the issues concerning the Vancouver property. Whether three of four of theKirk siblings approve the sale price of the property or whether the Administrator has full discretion to sell it at whatever price he deemsappropriate is a matter of some consequence.

So is the question of whether Marguerite and Paul are reimbursed for all of their costsrelating to withdrawing the litigation involving the Vancouver property versus whether they are entitled to only their direct costs.

Thus,even assuming arguendo that there is a distinction to be made between matters of substance and procedure when applying the audialteram partem principle, I conclude the Administrator’s argument cannot succeed on the facts in issue here. [33] In conclusion, therefore, the Fiat of the Chambers judge must be set aside to the extent it goes beyond confirming the legalvalidity of the Agreement and purports to interpret or implement the Agreement as it relates to legal fees, the listing and sale of theVancouver property and the payment of costs associated with the litigation concerning the Vancouver property.

More particularly, Iwould set aside paragraphs 18 to 20 and 22(4)(

b) and (

c) of the Fiat. If disagreements arise in the future with respect to how theAgreement should be interpreted or applied, it will be open to the parties, including the Administrator, to make an appropriateapplication to the Court of Queen’s Bench. B. The Cross-appeal [34] The cross-appeal arose in somewhat unusual circumstances. As just discussed, Marguerite and Paul took issue with thedecision of the Chambers judge to the extent that it purported to interpret and implement specific aspects of the Agreement. Margueritefiled a factum and Paul, acting on his own behalf, filed a written argument as per Rule 35.

Celeste, also unrepresented and speaking notjust for herself but for Gerald as well, then filed a written argument pursuant to Rule 35. In her argument she took issue with the validityof the Agreement on the basis that it had been secured by virtue of undue influence (in light of her financial situation) and had provenitself to be unworkable. As a bottom line, Celeste and Gerald asked this Court to grant probate of a testamentary document dated October30, 1979. [35] All of this led Paul to bring an application to quash what he characterized as Gerald and Celeste’s improper cross-appeal.

Atan appearance before a panel of the Court on August 29, 2017, Gerald and Celeste confirmed they were indeed seeking to cross-appeal.As a result, the Court ordered that any further materials on behalf of Marguerite and Paul be filed on or before September 8, 2017, andthat Gerald and Celeste file any materials in reply on or before September 15, 2017.

This in turn led Marguerite to file her ownapplication to quash the cross-appeal and led Celeste to file additional materials in defence of the cross-appeal. [36] One of the key problems with the cross-appeal is that its request for probate of the October 30, 1979, document is notgrounded on a proper evidentiary foundation. I appreciate that Celeste and Gerald are self-represented but neither of them filed a noticeof application concerning their desire to probate the October 30, 1979, document with the Chambers judge and neither of them filed anaffidavit with the Chambers judge.

Consequently, there is simply no basis on which this Court, as an evidentiary matter, could order thatthe October 30, 1979, document be probated. Gerald and Celeste should have been aware of this by virtue of Kirk v Kirk, 2015 SKCA30, a case where this Court overturned a grant of probate in respect of another of Anastasia Kirk’s putative wills on the basis that therewas not an adequate record concerning the provenance, storage and discovery of the document. In other words, the cross-appeal does nothave the same roots as the appeal proper.

It is a sort of curious free-floating add-on aimed at securing relief without laying the necessarygroundwork for it. [37] There is another problem with the cross-appeal that is equally fundamental. On June 4, 2015, in QBS 512 of 2013, Dovell J.ordered that the October 30, 1979, testamentary document (along with a January 23, 2005, testamentary document) be proven in solemnform. The requirement that the document be proven in solemn form was effectively affirmed by a further Queen’s Bench order on thisfile dated October 29, 2015.

In effect, therefore, the cross-appeal amounts to a collateral attack on Dovell J.’s order. If Celeste andGerald were not happy with that order, they should have appealed it. They are not entitled to navigate around it by launching a cross-appeal in this case. See: British Columbia (Workers’ Compensation Board) v Figliola, 2011 SCC 52 at para 28, [2011] 3 SCR 422. [38] In short, the cross-appeal is ill-founded and must be quashed. V. conclusion

[ 39 ] Marguerite’s appeal is allowed with the result that the orders and findings in paragraphs 18 to 20 and paragraphs 22(4)(

b) and (

c) of the Chambers judge’s Fiat are set aside. Marguerite and Paul’s applications in relation to Celeste and Gerald’s cross-appeal are granted and the cross-appeal is quashed. [ 40 ] Marguerite and Paul suggest this is an appropriate case for the award of solicitor-client costs because the conduct of Gerald and Celeste has been in the nature of an abuse of the Court’s process. I am not persuaded that enhanced costs are appropriate here.

Solicitor-client costs are exceptional and are awarded in cases where the conduct of the party against whom they are awarded can variously be described as “scandalous, outrageous or reprehensible”. See: Siemens v Bawolin , 2002 SKCA 84 at para 118 , [2002] 11 WWR 246; Hope v Pylypow , 2015 SKCA 26 at para 47 , 384 DLR (4th) 255.

There is too much conflict and murkiness in the relevant background facts here to warrant a conclusion that Gerald and Celeste’s conduct in this appeal has been so inappropriate as to call for a special sanction. [ 41 ] That said, Marguerite, who is represented by counsel, is entitled to one set of costs, half payable by Celeste personally and half by Gerald personally. They shall be payable on a party and party basis with respect to both the appeal and with respect to Marguerite’s application to quash the cross-appeal.

The latter award shall be calculated on the assumption that the application to quash was an opposed “complex motion” as per the Tariff of Costs. [ 42 ] Paul, who is unrepresented, is entitled to costs on the same basis as Marguerite in relation to both the appeal and his application to quash the cross-appeal. Being a lawyer is obviously not a necessary precondition for a self-represented litigant to be entitled to costs. See: Hope v Pylypow . It happens, however, that Paul is a practicing lawyer. His submissions, both written and oral, were thorough, well-reasoned and helpful.

I see no reason why, in all of the circumstances here, he should be awarded costs on a different basis than if he had hired counsel to make those very same submissions. [ 43 ] I accept Marguerite and Paul’s suggestion that costs should be deducted from the amounts that would otherwise be payable to Gerald and Celeste from the estate and added to the amounts payable from the estate to Marguerite and Paul. “Richards C.J.S.” Richards C.J.S. I concur. “Caldwell J.A.” Caldwell J.A. I concur. “Schwann J.A.” Schwann J.A.