Wamboldt v. Wamboldt Estate, (2010) 291 N.S.R.(2d) 323 (SC)

• Judge: Robertson, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: June 11, 2010
• Jurisdiction: Nova Scotia
• Citations: (2010), 291 N.S.R.(2d) 323 (SC);2010 NSSC 228

Wamboldt v. Wamboldt Estate (2010), 291 N.S.R.(2d) 323 (SC);

    922 A.P.R. 323

MLB headnote and full text

Temp. Cite: [2010] N.S.R.(2d) TBEd. JN.017

Randy J. Wamboldt (applicant) v. Estate of Harry Gordon Wamboldt (respondent)

(Hfx No. 310112; Prob. Ct. No. 54475; 2010 NSSC 228)

Indexed As: Wamboldt v. Wamboldt Estate

Nova Scotia Supreme Court

Robertson, J.

June 11, 2010.

Summary:

The 89 year old testator died on March 2, 2005. He suffered a stroke in August 1996 and executed a will in October 1996. It was conceded that the testator had the mental capacity to execute the will, which evenly distributed his estate among his daughter and sons. The testator's daughter became a live-in caregiver after he left the hospital. In August 2000, the testator executed a new will, drafted by the daughter without the assistance of a lawyer. The new will favoured the daughter over her brothers. One of the brothers challenged proof of the will in solemn form, claiming suspicious circumstances surrounding the preparation and execution of the will and lack of testamentary capacity.

The Nova Scotia Supreme Court, in a judgment reported 289 N.S.R.(2d) 59; 916 A.P.R. 59, held that the testator lacked testamentary capacity to execute the will in August 2000. Now at issue was costs.

The Nova Scotia Supreme Court awarded the successful party (brother) solicitor/client costs payable by the estate. The unsuccessful proponent of the will (sister) was entitled to party and party costs payable by the estate.

Executors and Administrators - Topic 5548

Actions by and against representatives - Costs - Where payable out of estate - The 89 year old testator died on March 2, 2005 - He suffered a stroke in August 1996 and executed a will in October 1996 - It was conceded that the testator had the mental capacity to execute the will, which evenly distributed his estate among his daughter and sons - The testator's daughter became a live-in caregiver after he left the hospital - In August 2000, the testator executed a new will, drafted by the daughter without the assistance of a lawyer - The new will favoured the daughter over her brothers - One of the brothers challenged proof of the will in solemn form, claiming suspicious circumstances surrounding the preparation and execution of the will and lack of testamentary capacity - The trial judge found that the testator lacked testamentary capacity to execute the will in August 2000 - The brother sought lump sum costs payable by the sister personally and that the sister be denied her costs - The Nova Scotia Supreme Court held that there was no reason to depart from the general rule that the successful party (brother) be awarded solicitor/client costs payable by the estate and the unsuccessful proponent of the will (sister) receive party and party costs payable by the estate - There was no vexatious conduct by the sister warranting denying her costs.

Practice - Topic 7032.1

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

Practice - Topic 7328

Costs - Costs in probate proceedings - Solicitor and client costs - [See Executors and Administrators - Topic 5548 ].

Practice - Topic 7466

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

Cases Noticed:

Ramsay Estate, Re, 2004 NSSC 162, refd to. [para. 6].

Murray Estate, Re (2000), 188 N.S.R.(2d) 147; 587 A.P.R. 147; 2000 CanLII 5316 (S.C.), refd to. [para. 8].

Veinot v. Veinot Estate et al. (1998), 167 N.S.R.(2d) 101; 502 A.P.R. 101; 1998 CanLII 4543 (S.C.), refd to. [para. 8].

Barrieau Estate, Re, [2008] N.S.R.(2d) Uned. 213; 2008 NSSC 162 (Prob. Ct.), refd to. [para. 9].

Fort Sackville Foundation v. Darby Estate (2010), 287 N.S.R.(2d) 164; 912 A.P.R. 164; 2010 NSSC 45, refd to. [para. 10].

Counsel:

Allen C. Fownes, for the applicant;

John T. Shanks, for the respondent.

This matter was heard by way of written submissions dated April 16, 20 and 23, 2010, before Robertson, J., of the Nova Scotia Supreme Court, who delivered the following judgment on June 11, 2010.