Baltzan Estate, Re, (2010) 355 Sask.R. 115 (QB)

• Judge: R.S. Smith, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: April 19, 2010
• Jurisdiction: Saskatchewan
• Citations: (2010), 355 Sask.R. 115 (QB);2010 SKQB 147

Baltzan Estate, Re (2010), 355 Sask.R. 115 (QB)

MLB headnote and full text

Temp. Cite: [2010] Sask.R. TBEd. AP.053

In the Estate of Marcel Alter Baltzan

Elizabeth Baltzan and Frances Baltzan (applicants) v. Nahid Ahmad (respondent)

(2008 Q.B.S. No. 223; 2010 SKQB 147)

Indexed As: Baltzan Estate, Re

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

R.S. Smith, J.

April 19, 2010.

Summary:

The deceased's widow applied for Letters Probate. The deceased's daughters (by a previous marriage) responded with a notice of motion, seeking an order compelling the widow to prove the will in solemn form. Subsequently, the daughters proceeded with a second motion seeking, inter alia, further document production, cross-examination on various affidavits, and an order removing counsel for the widow.

The Saskatchewan Court of Queen's Bench, per Mills, J., in a decision reported at (2008), 326 Sask.R. 276, allowed the motion in part, declining to allow the daughters to cross-examine various affiants and to remove counsel for the widow. The widow applied to strike portions of affidavits filed on behalf of the daughters. That application was dismissed. The main argument proceeded.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2009), 333 Sask.R. 1, dismissed the motion. The court directed the grant of Letters Probate and that the widow was entitled to costs against the daughters. The parties were not in agreement on the issue. Counsel for the estate prepared a Bill of Costs, as directed. The estate sought solicitor and client costs, including the procedural arguments in front of Mills, J., and the application to strike. The daughters contended that the costs award should only relate to costs respecting the argument regarding proof in solemn form.

The Saskatchewan Court of Queen's Bench concluded that it was fair and equitable for the widow to have solicitor and client costs, albeit taxed down to a level deemed appropriate. The court awarded costs to the widow of $11,095.71, representing recoverable fees of $10,000 and disbursements of $1,095.71, payable forthwith.

Executors and Administrators - Topic 5550

Actions by and against representatives - Costs - Where payable by claimant - [See Practice - Topic 7328 ].

Practice - Topic 7109.1

Costs - Party and party costs - Special orders - Increased costs (based on solicitor and client or special costs) - [See Practice - Topic 7451 ].

Practice - Topic 7326

Costs - Costs in probate proceedings - Unsuccessful opposition to proof of will - [See Practice - Topic 7328 ].

Practice - Topic 7328

Costs - Costs in probate proceedings - Solicitor and client costs - The deceased's widow applied for a grant of Letters Probate - The deceased's daughters (by a previous marriage) responded with a notice of motion, seeking an order compelling the widow to prove the will in solemn form - Subsequently, the daughters proceeded with a second motion seeking, inter alia, further document production, cross-examination on various affidavits, and an order removing counsel for the widow - Mills, J., allowed the motion in part - The widow applied to strike portions of affidavits filed on behalf of the daughters - That application was dismissed - The main argument proceeded - R.S. Smith, J., directed the Surrogate Court to grant Letters Probate, and that the widow was entitled to costs against the daughters - The estate sought solicitor and client costs, including the procedural arguments in front of Mills, J., and the application to strike - The daughters contended that the costs award should only relate to costs respecting the argument regarding proof in solemn form - The Saskatchewan Court of Queen's Bench agreed with the widow's position - The work done, including efforts referable to the procedural argument before Mills, J., was in furtherance of preparing for the widow's argument in opposition to the daughters' motion - The only exception to that was the widow's application regarding the striking of portions of affidavits: "[a]rguably, that had the badges of theatre rather than substance. On that account, some adjustment will be made" - See paragraph 15.

Practice - Topic 7451

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - General - The Saskatchewan Court of Queen's Bench discussed the principles on the issue of solicitor and client costs - "Solicitor and client costs can be of two types, either solicitor and client costs to be taxed, which means the Court will award more than that which would emanate from the Queen's Bench Rules but reserves its right to award less than complete indemnification to the successful party. Solicitor and client costs amounting to a complete indemnification for the successful party is available as an option to the Court. Of course, such an award would only be made if the Court concluded, in all the circumstances, that a complete indemnification was fair and reasonable" - See paragraphs 18 and 19.

Practice - Topic 7455

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Estates - An estate sought solicitor and client costs, covering services from as soon as the applicants declared they intended to insist that the deceased's will be proved in solemn form - Therefore, the solicitor and client costs included interlocutory procedural arguments and an application to strike portions of affidavits filed on behalf of the applicants - The Saskatchewan Court of Queen's Bench addressed the "sound policy reasons why the Court should cast a harder eye respecting costs involving unnecessary litigation in estate matters" - See paragraph 20.

Cases Noticed:

Siemens et al. v. Bawolin et al. (2002), 219 Sask.R. 282; 272 W.A.C. 282; 2002 SKCA 84, refd to. [para. 16].

Popke v. Bolt - see Serdahely Estate, Re.

Serdahely Estate, Re (2005), 392 A.R. 220; 2005 ABQB 861, affd. [2006] A.R. Uned. 537; 2006 ABCA 338, consd. [para. 21].

Wiest v. Jopp-Shelton (2004), 248 Sask.R. 293; 2004 SKQB 222, consd. [para. 23].

Stewart v. McLean - see West Estate, Re.

West Estate, Re (2003), 337 A.R. 164; 2003 ABQB 205, consd. [para. 24].

Counsel:

T. Zakreski, for the applicants;

J. Chapin, for the respondent.

This costs matter was heard by R.S. Smith, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following fiat on April 19, 2010.