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Civility and Costs on an Abandoned Will Challenge

A recent decision out of Alberta deals with the often thorny issue of costs on an abandoned will challenge.

In Re Dool (Estate of), 2007 ABQB 122, challengers to a will decided to abandon their challenge for "financial and health reasons". They sought a discontinuance without costs. The Respondent sought costs from the challengers.

The court not only allowed the action to be discontinued without costs, but it allowed the Applicant’s their costs from the estate.

The circumstances of the case leading to such an award merit closer review. The court noted that the will challengers had significant grounds which warranted judicial inquiry. The court also found that the Respondents failed to cooperate with the Applicants in addressing these concerns. The court also referred to the serious health problems of the Applicants and the effect that this had on their ability to continue with the litigation. The court went on to make significant note of the conduct of counsel for the applicant, which was "reasonable" throughout, as compared to counsel for the Respondent, which was said to be "aggressive, uncooperative and demeaning". This approach by the Respondent prevented the Applicants from effectively assessing the reasonableness of their claim, as was their obligation.

The court specifically addressed the "comportment of counsel". The judge noted that “It was not pleasant having counsel for the Respondent appear before me." Counsel’s conduct was said to border on contempt. The court lamented the increasing frequent lack of civility between counsel, and the comportment of counsel in addressing the court. This clearly influenced the judge in making the discretionary costs award that he did.

One lesson to be taken from this interesting case is that, aside from the merits, the approach taken by counsel can have a significant impact on a costs award made by the court. It is quite possible that a very different approach would have resulted in a very different costs award. The Respondent may have been able to avoid an award of costs in favour of the Applicants, based on the prevailing case law. While counsel must vigorously and fearlessly advance the positions of their clients, this is most effectively done in a reasonable and civil manner.

Thank you for reading,

Paul Trudelle