The Tradition Lives On: Costs Payable from the Estate where the Deceased was at Fault

November 19, 2019 Doreen So Continuing Legal Education, Disappointed Beneficiaries, Estate Litigation, Executors and Trustees, Uncategorized Tags: , , , , 0 Comments

Competing applications about the ownership of a home were before the Court in Marley v. Salga, 2019 ONSC 3527.  On the death, the home was jointly owned between the deceased (Salga) and his wife (Marley).  Notwithstanding the registered, legal ownership of the property, Salga’s Will gave Marley a lifetime right to occupy and use Salga’s one-half interest in the property and thereafter directed that the house be sold for the benefit of the residuary beneficiaries.

This led the residuary beneficiaries to commence an Application for a declaration that the Estate is entitled to an undivided one-half interest in the home and for an order requiring the Estate Trustee (Klassen) to sell the home right away (the “Salga Application“).  Thereafter, Marley commenced her own Application for a declaration that she was the sole legal and beneficial owner of the property, or, alternatively, that her interest in the property is greater than 50% (the “Marley Application“).

Ultimately, Justice Reid found that ownership of the property was severed by the deceased in the course of his dealings but denied the Salga Applicants’ request that the property be sold before the termination of Marley’s interest under the Will.  The Marley Application was also denied.  Our blog on this decision can be found here.

The parties were unable to agree to the issue of costs.  Justice Reid, 2019 ONSC 6050, followed the traditional approach to costs in estate matters and the costs of both applications, on a partial indemnity scale, were ordered from the Estate.  In reaching this conclusion, Justice Reid considered and found the following:

  1. The Marley Application was in essence a response to the Salga Application and the costs of both proceedings were treated as one;

 

  1. Both parties were found to be partially successful: the Salga Applicants were successful in obtaining a declaration that 50% of the home belongs to the Estate and the Marley Applicant was successful in preventing an immediate sale of the home;

 

  1. Consideration was given to the fact that an award of costs from the Estate meant that the Salga Applicants (as the residuary beneficiaries) would be effectively bearing their own costs as well as Marley’s costs. However, that was not enough to outweigh the deceased’s responsibility to act unambiguously by severing his interest on title during his lifetime.

 

  1. Costs against the Estate in this case “places the responsibility for the litigation squarely on [the deceased] where it belongs“.

This costs decision is also an informative read for the costs of an estate trustee as a respondent in both proceedings and how costs should be paid from an estate where there is no liquidity.

Thanks for reading!

Doreen So

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