Keddy v. Keddy Estate, (2016) 375 N.S.R.(2d) 347 (SC)

• Judge: Warner, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: May 27, 2016
• Jurisdiction: Nova Scotia
• Citations: (2016), 375 N.S.R.(2d) 347 (SC);2016 NSSC 194

Keddy v. Keddy Estate (2016), 375 N.S.R.(2d) 347 (SC);

    1182 A.P.R. 347

MLB headnote and full text

Temp. Cite: [2016] N.S.R.(2d) TBEd. JL.026

Brad Keddy (applicant) v. Estate of Henry Robert Keddy (defendant)

(Probate No. K/K 12937; 2016 NSSC 194)

Indexed As: Keddy v. Keddy Estate

Nova Scotia Supreme Court

Warner, J.

July 22, 2016.

Summary:

Brad Keddy applied to revoke the grant of probate of his father's November 7, 1974 will. The will left his entire estate to Brad's brother (Troy) and appointed Troy executor when he obtained the aged of majority.

The Nova Scotia Probate Court, in a decision not reported in this series of reports, dismissed the application. Brad sought "at the very least" party and party costs against the estate in the amount of $6,250 plus HST. He estimated his legal costs at about $14,000. The estate asserted that Brad's claim was entirely without merit and sought party and party costs against Brad in the amount of $8,250 plus expenses.

The Nova Scotia Supreme Court ordered Brad to pay the estate party and party costs of $5,000.

Executors and Administrators - Topic 5548

Actions by and against representatives - Costs - Where payable out of estate - Brad Keddy applied to revoke the grant of probate of his father's will - The will left his entire estate to Brad's brother (Troy) and appointed Troy executor when he obtained the aged of majority - The Probate Court dismissed the application - Brad sought "at the very least" party and party costs against the estate in the amount of $6,250 plus HST - He estimated his legal costs at about $14,000 - The estate sought party and party costs against Brad in the amount of $8,250 plus expenses - The Nova Scotia Supreme Court denied Brad's request for costs - His case had been without merit - The court's scrutiny and supervision had not been warranted - At best, the litigation should have been discontinued at an early stage - The court had a problem with the historic concept that estate litigation created a "free for all" by all litigants to claim costs against an estate - That encouraged unreasonable litigation and was contrary to the general principles enunciated in Civil Procedure Rule 77 respecting litigation generally - Costs flowing from estate litigation should apply rule 77, which rule allowed for exceptional circumstances - Generally, the loser should pay - Here, equity was not on Brad's side, and there was no factual or legal basis to have continued the litigation after disclosure - The estate should not have to pay all of its lawyer's costs, which would be the effective result if no costs were awarded against Brad - This was not however an exceptional circumstance where Brad should pay reasonable solicitor and client costs - The starting point was Tariff A - The tariff amount for this litigation on Scale 2 (basic scale) was $7,250, plus $2,000 for a full-day hearing - Additionally, there were other appearances required of the estate - This amount could be adjusted to "do justice between the parties" - The court ordered Brad to pay the estate costs of $5,000.

Practice - Topic 7032.1

Costs - Party and party costs - Entitlement to - Estate matters - [See Executors and Administrators - Topic 5548 ].

Practice - Topic 7326

Costs - Party and party costs - Costs in probate proceedings - Unsuccessful opposition to proof of will - [See Executors and Administrators - Topic 5548 ].

Practice - Topic 7328

Costs - Party and party costs - Costs in probate proceedings - Solicitor and client or solicitor and is own client costs - [See Executors and Administrators - Topic 5548 ].

Practice - Topic 7455

Costs - Solicitor and client costs - Entitlement to - Estates and estate matters - [See Executors and Administrators - Topic 5548 ].

Practice - Topic 7466

Costs - Solicitor and client costs - Entitlement to - Probate actions - [See Executors and Administrators - Topic 5548 ].

Counsel:

Jonathan Cuming, for the applicant, Brad Keddy;

Eric Sturk and Greg Affleck, for the Estate of Henry Robert Keddy.

This matter was heard on May 27, 2016, at Kentville, Nova Scotia, with final written submissions received on June 17, 2016, by Warner, J., of the Nova Scotia Supreme Court, who delivered the following judgment on July 22, 2016.