Citation: Fort Sackville Foundation v. Darby Estate, 2010 NSSC 45
Date: 20100209
Docket: Hfx No. 315095 and
Probate No. 56651
Registry: Halifax
Between:
The Fort Sackville Foundation
Applicant
and
Ross E. Hallett, in his capacity as personal representative
of the Estate of John Darby
Respondent
DECISION ON COSTS
Judge: The Honourable Justice Gerald R. P. Moir
Heard: December 17, 2009 in Halifax
Last Written Submissions: January 29, 2010
Counsel: Ms. Lyndsay Jardine and Ms. Suzanne Robichaud, articled clerk, for the applicant
Mr. Kevin Gibson and Mr. David Graves, Q.C. for the respondent
Mr. Timothy C. Matthews, Q.C. for the Canadian National Institute for the Blind, the Canadian Cancer Research Society, and the Board of Governors of McGill University
Moir, J.:
[1] The Fort Sackville Foundation submits that, as suggested in the main decision, it should receive solicitor and client costs. The residuary beneficiaries submit that the Foundation should receive party and party costs or, better, no costs at all.
[2] For the residuary beneficiaries, Mr. Matthews points out that an award of costs to the Foundation means that successful residuary beneficiaries pay costs to the unsuccessful party, since the residue will be reduced by the amount of the costs. He suggests that there are three questions I should consider:
On the one hand, the question is whether the issues which arose were solely the result of the testator's unfortunate wording of the gift to a non-existent organization. On the other hand, the question is whether it was credibly arguable that the Fort Sackville Foundation was the successor organization and thus entitled to contest the matter at all. Further, was it reasonable for Fort Sackville Foundation to assert it was entitled to receive the gift but was not bound either by the time limitation set out in the will or by the testator's evident desire to preserve his home as a museum.
[3] For the Fort Sackville Foundation, Ms. Jardine refers to this passage from para. 22 of Morash Estate v. Morash, [1997] N.S.J. 403 (C.A.):
In wills matters the general practice appears to be for executors to be awarded solicitor and client costs to be paid from the estate in any event, for executors may have no personal interest in the outcome and no other source of reimbursement for their legal expenses. When the matter in contention is not frivolous, unsuccessful opposing parties usually have their costs paid from the estate as well, usually on a party and party basis, but occasionally, depending on the practice of the individual judge, on a solicitor and client basis.
That was a case in which the unsuccessful party had required proof in solemn form, and the Court of Appeal refused to interfere with the probate judge's award of solicitor and clients costs to the unsuccessful party. In effect, the successful proponents of the will paid the costs of the unsuccessful opponent.
[4] Disputes over a fund or an estate may give rise to exceptional circumstances as referred to in Rule 77.03(2). The discretion may be moved because the dispute, and the need for a determination, is created less by the parties than by the instrument that governs the fund or estate.
[5] The issues in this case were not "solely the result of the testator's unfortunate wording", but they were fuelled by the wording of his will. The argument that the Fort Sackville Foundation was the successor organization was based on reason. It was successor to the assets of the misnamed society. The argument that Fort Sackville could unconditionally receive the gift involved too much of an expansion of the cy-près doctrine, but the expansion was reasonably advocated.
[6] In my assessment, the peculiar things about the terms of the gift justified Fort Sackville's arguments, although its arguments failed. I refer to the misnomer, the fact that the identified society had ceased to exist long before the gift, and the notion that the gift was to commemorate the merchant marine although the apparently operative parts of the gift did nothing to promote it.
[7] Considering all of the circumstances, this is a case for awarding solicitor and client costs to each party out of the estate.
J.