Serdahely Estate, Re, 2005 ABQB 861

• Judge: Johnstone, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: September 30, 2005
• Citations: 2005 ABQB 861;(2005), 392 A.R. 220 (QB)

Serdahely Estate, Re (2005), 392 A.R. 220 (QB)

MLB headnote and full text

Temp. Cite: [2005] A.R. TBEd. NO.175

Estate Name: Rose Ann Serdahely, also known as Rozalia Anna Szerdahelyi

Mary Popke and Bernadette (Bonnie) Boykiw (applicants) v. Olga Bolt and Paul Haljan (respondents)

(ES03 112886; 2005 ABQB 861)

Indexed As: Serdahely Estate, Re

Alberta Court of Queen's Bench

Judicial District of Edmonton

Johnstone, J.

November 21, 2005.

Summary:

The respondents objected to the validity of the deceased's will, alleging suspicious circumstances, lack of testamentary capacity, undue influence, fraud and misrepresentation by the residuary beneficiaries, including the applicants.

The Alberta Court of Queen's Bench, in a decision reported at [2005] A.R. Uned. 620, rejected the grounds raised by the respondents and found that the will was valid. The applicants sought solicitor-client costs and the respondents requested that all costs, including theirs, be paid out of the estate.

The Alberta Court of Queen's Bench ordered that the respondents be responsible for their own costs and that the applicants were entitled to be indemnified by the respondents for their solicitor-client costs from October 23, 2003 onward.

Courts - Topic 691

Judges - Disqualification - Bias - Reasonable apprehension of bias - The present proceedings arose from the respondents' objection to the validity of the deceased's will - The respondents alleged a reasonable apprehension of bias arising from the fact that a partner of the law firm where the judge's spouse was employed was acting for a party being sued by one of the respondents in a different action - The Alberta Court of Queen's Bench found no reasonable apprehension of bias - See paragraphs 3 to 15.

Practice - Topic 7454

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Improper, irresponsible or unconscionable conduct - The respondents objected to the validity of the deceased's will, alleging suspicious circumstances, lack of testamentary capacity, undue influence, fraud and misrepresentation by the residuary beneficiaries, including the applicants - The grounds raised by the respondents were rejected and the will was found to be valid - The applicants sought solicitor-client costs and the respondents requested that all costs, including theirs, be paid out of the estate - The Alberta Court of Queen's Bench found that the respondents had pursued a highly oppositional course of conduct with little or no substantive basis for their position, that their obstructionist conduct was egregious and that they should have determined that the issue of suspicious circumstances was groundless by no later than October 23, 2003 - The court ordered that the respondents be responsible for their own costs and that the applicants were entitled to be indemnified by the respondents for their solicitor-client costs from October 23, 2003 onward - See paragraphs 55 to 60.

Practice - Topic 7457

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Where claim or defence irrelevant, scandalous or without merit - [See Practice - Topic 7454 ].

Cases Noticed:

Broda v. Broda (2000), 285 A.R. 201; 2000 ABQB 948, refd to. [para. 7].

Ritter et al. v. Hoag et al. (2003), 335 A.R. 185; 2003 ABQB 387, refd to. [para. 7].

G.W.L. Properties Ltd. et al. v. Grace (W.R.) & Co. of Canada Ltd. et al. (No. 2) (1992), 21 B.C.A.C. 167; 37 W.A.C. 167; 74 B.C.L.R.(2d) 283 (C.A.), refd to. [para. 8].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2003] 2 S.C.R. 259; 309 N.R. 201, refd to. [para. 9].

Point on the Bow Development Ltd. v. Kelly (William) & Sons Plumbing Contractors Ltd. et al. (2005), 371 A.R. 395; 354 W.A.C. 395; 2005 ABCA 310, refd to. [para. 11].

S.G. v. Larochelle et al. (2005), 363 A.R. 326; 343 W.A.C. 326; 2005 ABCA 111, leave to appeal refused (2005), 347 N.R. 196 (S.C.C.), refd to. [para. 11].

Dansereau Estate v. Vallee, 2000 ABQB 288, refd to. [para. 19].

Reese et al. v. Alberta (Minister of Forestry, Lands and Wildlife) et al. (1992), 133 A.R. 127 (Q.B.), refd to. [para. 22].

Hemmerling Estate v. Hemmerling et al. (2000), 279 A.R. 373; 2000 ABQB 902, refd to. [para. 22].

Holzel v. Mjeda - see Sinigoj Estate, Re.

Sinigoj Estate, Re (2000), 269 A.R. 30; 2000 ABQB 549, refd to. [para. 22].

Maxwell v. Nottingham and Smith (1993), 23 B.C.A.C. 317; 39 W.A.C. 317; 77 B.C.L.R.(2d) 94 (C.A.), refd to. [para. 23].

Oldfield v. Oldfield Estate, [1994] O.J. No. 2529 (Gen. Div.), refd to. [para. 23].

Stevens v. Crawford et al. (2000), 264 A.R. 219; 2000 ABQB 305 (Sur. Ct.), refd to. [para. 23].

Kolacz v. Burdeinei et al. (1997), 205 A.R. 54 (Q.B.), refd to. [para. 23].

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

McCullough Estate, Re (1997), 202 A.R. 146 (Q.B.), affd. (1998), 212 A.R. 74; 168 W.A.C. 74; 1998 ABCA 38, refd to. [para. 24].

Kessiloff v. Kessiloff and Public Trustee (Man.) (1987), 46 Man.R.(2d) 129 (C.A.), refd to. [para. 26].

Van Hecke v. Van Brabant Estate - see Van Brabant Estate, Re.

Van Brabant Estate, Re (1987), 76 A.R. 204 (Surr. Ct.), refd to. [para. 28].

Riva v. Robinson (2000), 263 A.R. 389; 2000 ABQB 391, refd to. [para. 29].

Scramstad et al. v. Stannard (1996), 190 A.R. 1 (Q.B.), refd to. [para. 31].

Bahry v. Zytaruk (2002), 323 A.R. 280; 50 E.T.R.(2d) 187; 2002 ABQB 858, refd to. [para. 51].

Authors and Works Noticed:

Schnurr, Brian A., Estate Litigation (2nd Ed. 1994), vol. 2, p. 19-2 [para. 22].

Stevenson, William A., and Côté, Jean E., Civil Procedure Encyclopedia (2003), vol. 4, pp. 72, 73 [para. 19].

Counsel:

David Mercer and Anthony Holinski (Nickerson Roberts Holinski & Mercer), for the applicants;

Paul Haljan, for the respondents.

This matter was heard on September 30, 2005, before Johnstone, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for decision as to costs on November 21, 2005.