Originally published in Volume 28, No. 2 of Deadbeat, a
publication of the Ontario Bar Association.
In the October 2009 edition of Deadbeat, Elizabeth Seo
provided a helpful survey of recent costs decisions in estates
litigation. A decision released by Justice Pitt in late October
2009 throws additional light on the issue of costs.
The decision in Estate of Elizabeth Gyetvan1
is consistent with the message in McDougald Estate v.
Gooderham2 and Salter v.
Salter3 that costs will not be routinely ordered
out of the Estate and that parties"cannot treat the assets of
the estate as a kind of ATM bank machine...".
In Gyetvan, Justice Pitt awarded full indemnity costs
against the unsuccessful respondent, to be paidfrom his interest in
the proceeds of sales of real estate devised to him under the
Elizabeth Gyetvan had left three parcels of real estate to her
two sons who were the co-executors and sole beneficiaries of her
estate. The properties had still not been transferred to the sons
more than four years after Elizabeth's death because of
bitterness between them.
One brother applied for a declaration that the properties had
vested by virtue of s. 9 of the Estates Administration
Act, for an order requiring the Land Registry office to
register the brothers' ownership, and for an order for the sale
of all three properties under the Partition Act.
The conduct of the respondent brother during the litigation lent
credence to the applicant's affidavit evidence of the
respondent's failure or refusal to cooperate since the death of
Justice Archibald on the first attendance ordered the vesting
declaration and registration of the real estate in the names of the
brothers, on consent. He adjourned the balance of the application,
urging the respondent to retain counsel, and recorded in his
endorsement that the respondent was going to retain counsel. The
respondent brother did not approve the draft order, or retain
counsel. On the second attendance, the court ordered a settlement
conference. This was held a month later, but no settlement
The respondent brother did not attend court on the ensuing
motion to fix a peremptory return date for the application. When
the application came on for hearing before Justice Pitt, his Honour
noted in his endorsement that the respondent had filed no evidence
and "had seen fit not to retain counsel". He also noted
that applicant brother had done "everything within his
power" to have the real estate sold and the proceeds divided.
He granted the application and gave the applicant brother carriage
of the sales, stipulating that the signature of the respondent
brother was not required in respect of the listing of the
properties or the acceptance of offers. He also ordered the
proceeds of the three sales to be paid to the applicant
brother's solicitors in trust.
As to costs, Justice Pitt ordered "costs of and incidental
to the application on a full indemnity basis" in an amount to
be approved by the Court on notice to the respondent, to be charged
against the interest of the respondent brother in the sale
proceeds. In addition, His Honour removed the respondent brother as
an estate trustee. It was clear that the respondent brother's
conduct (outlined above) factored heavily in the making of the
The message in the McDougald Estate and Salter
cases echoes throughout Justice Pitt's decision in Gyetvan.
1 Unreported decision of Justice Pitt of the Ontario
It is not uncommon for parents to provide monetary gifts to their adult children. Parents may wish to help their child with a down payment on a property, or help pay out their child's existing mortgage.
On March 31, 2014, BC's new Wills, Estates and Succession Act1 ("WESA") will come into force. WESA introduces new protections for beneficiaries of estates that are in danger of being disputed or deemed ineffective by a court.
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