McCully v. Rogers Estate, (2012) 326 N.S.R.(2d) 1 (ProbCt)

• Judge: Scanlan, J.
• Court: Probate Court of Nova Scotia (Canada)
• Case Date: January 16, 2012
• Jurisdiction: Nova Scotia
• Citations: (2012), 326 N.S.R.(2d) 1 (ProbCt);2012 NSSC 435

McCully v. Rogers Estate (2012), 326 N.S.R.(2d) 1 (ProbCt);

    1033 A.P.R. 1

MLB headnote and full text

Temp. Cite: [2013] N.S.R.(2d) TBEd. FE.016

Joyce McCully (applicant) v. Roxanna Rutherford Rogers Estate and Peggy Rogers, Residual Beneficiary (respondents)

(Amh. 10580 (318336); 2012 NSSC 435)

Indexed As: McCully v. Rogers Estate

Nova Scotia Probate Court

Scanlan, J.

September 27, 2012.

Summary:

On October 15, 2009, McCully applied to have the will of the late Rogers proved in solemn form. She alleged both incapacity of Rogers and undue influence on the part of Rogers' niece (the residual beneficiary) and the niece's husband. On the first day of the hearing on January 16, 2012, by consent order, the parties agreed to dismiss the application. The consent order provided that McCully's own costs were not to be paid out of the estate but it did not settle the issue of costs as between her, the estate and the niece. The estate and the niece sought solicitor and client costs paid by McCully. McCully sought to have the tariff applied.

The Nova Scotia Probate Court ordered McCully to pay the estate a lump sum of $50,000 as against legal fees and disbursements, $5,000 for the additional costs of storage incurred by the estate and $2,000 towards the costs of the estate's administrator. She was also to pay $45,000 to the niece for her fees, inclusive of disbursements. The amounts were not solicitor client fees, but represented a substantial contribution to the legal fees and disbursements.

Executors and Administrators - Topic 5550

Actions by and against representatives - Costs - Where payable by claimant - On October 15, 2009, McCully applied to have the will of the late Rogers proved in solemn form - She alleged both incapacity of Rogers and undue influence on the part of Rogers' niece (the residual beneficiary) and the niece's husband - The estate value was approximately $400,000 - The application took over two years - There were extensive discoveries in Nova Scotia and Ontario - On the first day of the hearing on January 16, 2012, by consent order, the parties agreed to dismiss the application - The order was substantially less generous than several settlement offers that McCully had rejected - The order provided that McCully's own costs were not to be paid out of the estate but it did not settle the issue of costs as between her, the estate and the niece - The estate and the niece sought solicitor and client costs - The Nova Scotia Probate Court stated that the steps leading up to the hearing had been long, tedious and wasteful - McCully's actions delayed the settling of the estate - That resulted in extensive ongoing costs - None of the costs were justified in the sense that McCully knew, or should have known, from the earliest stages that the application lacked merit - She made serious allegations of fraud in that she alleged that the signature on the will was not that of Rogers - That allegation challenged the discovery of the solicitor who indicated that he had witnessed the will being executed - Although McCully's actions were deserving of rebuke, they were not so extreme as to be one of those rare and exceptional cases which justified solicitor client costs - Instead, the court ordered McCully pay the estate a lump sum of $50,000 as against legal fees and disbursements, $5,000 for the additional costs of storage incurred by the estate and $2,000 towards the costs of the estate's administrator - She was also to pay the niece $45,000 for her fees, inclusive of disbursements - The amounts represented a substantial contribution to the legal fees and disbursements.

Practice - Topic 7326

Costs - Costs in probate proceedings - Unsuccessful opposition to proof of will - [See Executors and Administrators - Topic 5550 ].

Practice - Topic 7328

Costs - Costs in probate proceedings - Solicitor and client or solicitor and own client costs - [See Executors and Administrators - Topic 5550 ].

Practice - Topic 7455

Costs - Solicitor and client costs - Entitlement to - Estates and estate matters - [See Executors and Administrators - Topic 5550 ].

Practice - Topic 7457

Costs - Solicitor and client costs - Entitlement to - Where claim or defence irrelevant, scandalous or without merit - [See Executors and Administrators - Topic 5550 ].

Practice - Topic 7466

Costs - Solicitor and client costs - Entitlement to - Probate actions - [See Executors and Administrators - Topic 5550 ].

Practice - Topic 7470

Costs - Solicitor and client costs - Entitlement to - Unproven allegation of fraud - [See Executors and Administrators - Topic 5550 ].

Cases Noticed:

Danyluk v. Ainsworth Technologies Inc. et al., [2001] 2 S.C.R. 460; 272 N.R. 1; 149 O.A.C. 1; 2001 NSSC 44, refd to. [para. 9].

Leung v. Leung, [1993] B.C.J. No. 2909 (S.C.), refd to. [para. 9].

Counsel:

Rob Sutherland, for the applicant, Joyce McCully;

J. Andrew Fraser, for the respondent, Roxanna Rogers Estate/Canada Trust Company (Personal Representative of Roxanna Rogers);

Ann Levangie, for the respondent, Peggy Rogers, Residual Beneficiary.

This matter was heard at Truro, Nova Scotia, on January 16, 2012, by Scanlan, J., of the Nova Scotia Probate Court, who received final written submissions on September 14, 2012, and delivered the following judgment on September 27, 2012.