Foote Estate, Re, (2010) 484 A.R. 188 (QB)

• Judge: Graesser, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 10, 2010
• Citations: (2010), 484 A.R. 188 (QB);2010 ABQB 197

Foote Estate, Re (2010), 484 A.R. 188 (QB)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. MR.122

Trudy David, Douglas Foote, Debbie Entwistle, Dean Foote and Laurie Evans and Anne Foote (applicants/plaintiffs) v. The Estate of Eldon Douglas Foote and the Lord Mayor's Charitable Fund and The Edmonton Community Foundation (respondents/defendants)

(ES03 119897; 2010 ABQB 197)

Indexed As: Foote Estate, Re

Alberta Court of Queen's Bench

Judicial District of Edmonton

Graesser, J.

March 22, 2010.

Summary:

A testator's family, which wished to pursue family relief claims, applied for a determination of the testator's domicile at the time of his death (i.e., Alberta or British Columbia). The testator's estate and his charitable foundations claimed his domicile was the Norfolk Island (an island off Australia). A preliminary issue arose as to whether the Alberta court had jurisdiction, or should exercise jurisdiction, to determine the domicile issue.

The Alberta Court of Queen's Bench, in a decision reported 431 A.R. 338, held that the issue of where the testator was domiciled as at the date of his death would be determined in Alberta (the forum application). The matter proceeded.

The Alberta Court of Queen's Bench, in the decision reported 475 A.R. 273, found that the testator's domicile at death was Norfolk Island (the domicile application). He had adopted that domicile at the time he became a resident of that island, in April 1972. Costs of both the forum and domicile application were in issue. The successful parties (i.e., the estate executor and two of the charitable foundations (the two residual beneficiaries)), applied for costs of the proceedings on a solicitor and client basis against the testator's family. His family sought payment of their solicitor and client costs from the estate.

The Alberta Court of Queen's Bench held that the charitable foundations were not entitled to recover costs from the testator's family. Further, this was a case where the executor and estate should not recover costs from the family, despite the fact that the estate was successful in arguing that the testator 's domicile was Norfolk Island. Rather, this was a case where the family should recover their costs on a solicitor and client basis from the estate.

Executors and Administrators - Topic 5548

Actions by and against representatives - Costs - Where payable out of estate - The Alberta Court of Queen's Bench referred to the principles applicable in Alberta respecting the law on costs payable by an estate and recovery of costs by a successful executor - See paragraphs 14 to 24.

Executors and Administrators - Topic 5548

Actions by and against representatives - Costs - Where payable out of estate - [See second Practice - Topic 7455 ].

Executors and Administrators - Topic 5550

Actions by and against representatives - Costs - Where payable by claimant - [See second Practice - Topic 7455 ].

Practice - Topic 7455

Costs - Solicitor and client costs - Entitlement - Estates and estate matters - A testator's family, which wished to pursue family relief claims, applied for a determination of the testator's domicile at the time of his death (i.e., Alberta or British Columbia) - The testator's estate and his charitable foundations (the residual beneficiaries) claimed his domicile was the Norfolk Island (an island off Australia) - As a preliminary matter, a Queen's Bench judge ruled that the issue of where the testator was domiciled as at the date of his death would be determined in Alberta (the forum application) - The matter proceeded - The court subsequently ruled that the testator's domicile at death was Norfolk Island (the domicile application) - The charitable foundations applied for costs of the proceedings on a solicitor and client basis against the testator's family - The Alberta Court of Queen's Bench denied the two charities any cost recovery from the family - The court stated that persons who were only participating in the litigation to protect their inheritances, and who did not have a position adverse to the executor, should normally be responsible for their own costs - The court commented further that the charities' claim for costs on a solicitor and client basis was not appropriate and unseemly in these circumstances - See paragraphs 25 to 37.

Practice - Topic 7455

Costs - Solicitor and client costs - Entitlement - Estates and estate matters - A testator died leaving most of his large estate to his charitable foundations - His will contained a poison pill clause which essentially disinherited a beneficiary who challenged the will - The testator's family, wanting to pursue family relief claims, applied for a determination of the testator's domicile at the time of his death (i.e., Alberta or British Columbia) - The testator's estate and his charitable foundations claimed his domicile was the Norfolk Island (an island off Australia) - As a preliminary matter, a Queen's Bench judge ruled that the issue of where the testator was domiciled as at the date of his death would be determined in Alberta (the forum application) - The matter proceeded - The court subsequently ruled that the testator's domicile at death was Norfolk Island (the domicile application) - The executor and estate each sought solicitor and client costs with respect to their successful defence of the family's allegation of an Alberta or British Columbia domicile - The Alberta Court of Queen's Bench held that the executor and estate should not recover costs from the family, despite the fact that the estate was successful in arguing that the testator 's domicile was Norfolk Island - Factors considered by the court included that the testator caused the litigation by the manner in which he drafted his will and disposed of his estate; the questionable nature of a poison pill clause invited legitimate litigation; the family's challenge was reasonable; and there was no allegation of undue influence - This was a case where the family should recover their costs on a solicitor and client basis from the estate - See paragraphs 38 to 59.

Practice - Topic 7456

Costs - Solicitor and client costs - Entitlement - Executors and administrators - [See second Practice - Topic 7455 ].

Cases Noticed:

Anderson Estate, Re, [2009] A.R. Uned. 407; 2009 ABQB 663, refd to. [para. 11].

Babchuk v. Kutz et al. (2007), 411 A.R. 181; 2007 ABQB 88, refd to. [para. 11].

College of Physicians and Surgeons (Alta.) v. J.H. et al. (2009), 468 A.R. 101; 2009 ABQB 48, refd to. [para. 11].

McCullough Estate v. Ayer - see McCullough Estate, Re.

McCullough Estate, Re (1998), 212 A.R. 74; 168 W.A.C. 74; 1998 ABCA 38, refd to. [para. 11].

McDougald Estate v. Gooderham - see McDougald Estate, Re.

McDougald Estate, Re (2005), 199 O.A.C. 203 (C.A.), refd to. [para. 11].

Mitchell v. Gard (1863), 164 E.R. 1280 (Prob. Ct.), refd to. [para. 11].

Petrowski v. Petrowski Estate et al. (2009), 476 A.R. 171; 2009 ABQB 753, refd to. [para. 11].

Riva v. Robinson (2000), 263 A.R. 389; 2000 ABQB 391, refd to. [para. 11].

Salter v. Salter Estate, Re [2009] O.T.C. Uned. D35, refd to. [para. 11].

Serdahely Estate, Re (2005), 392 A.R. 220; 2005 ABQB 861, refd to. [para. 11].

St. Onge Estate v. Breau (2009), 345 N.B.R.(2d) 101; 889 A.P.R. 101; 2009 NBCA 36, refd to. [para. 11].

Corlet and Isle of Man Bank (No. 2), Re, [1938] 3 W.W.R. 20 (Alta. S.C.), refd to. [para. 13].

Hegedus Estate v. Paul (Public Trustee of) - see Hegedus Estate, Re.

Hegedus Estate, Re (1999), 246 A.R. 161; 71 Alta. L.R.(3d) 179 (Surr. Ct.), refd to. [para. 13].

Ross v. Redl - see Redl et al. v. Nolan et al.

Redl et al. v. Nolan et al. (2009), 339 Sask.R. 184; 2009 SKQB 266, refd to. [para. 13].

Schuttler v. Anderson (1999), 246 A.R. 17 (Q.B.), refd to. [para. 13].

Scramstad et al. v. Stannard (1996), 190 A.R. 1 (Q.B.), refd to. [para. 13].

Seward v. Seward Estate (1997), 201 A.R. 77 (Q.B.), refd to. [para. 13].

Babchuk v. Kutz et al. (2007), 411 A.R. 181; 2007 ABQB 88, refd to. [para. 14].

Fleck v. Stewart (1991), 118 A.R. 345 (Q.B.), refd to. [para. 39].

Authors and Works Noticed:

Stevenson, William A., and Côté, Jean E., Annotation of the Alberta Rules of Court (2009), p. 601 [para. 13].

Counsel:

John M. Hope, Q.C., and Bryan Kwan (Duncan & Craig LLP), for Trudy David, Douglas Foote, Debbie Entwistle, Dean Foote and Laurie Evans;

Scott J. Hammel and Sandra L. Hawes (Miller Thomson LLP), for Anne Foote;

Daniel Hagg, Q.C. (Bryan & Company LLP), for the Estate of Eldon Douglas Foote;

Bruce Comba (Emery Jamieson LLP), for the Lord Mayor's Charitable Fund;

Karen Platten and Anita Mohan (McLennan Ross LLP), for the Edmonton Community Foundation.

This matter was heard on March 10, 2010, before Graesser, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on March 22, 2010.