Woman challenges father's will based on undue influence and lack of testamentary capacity
Following an unsuccessful appeal in a will dispute, the Court of Appeal of Alberta has ordered the appellant to pay $50,000 in costs to her brother and her niece, who was the personal representative of the subject estate.
In Gordon Estate (Re), 2024 ABCA 286, the testator died in 2019. His daughter, who was the appellant in this case, challenged the validity of the January 2019 will that excluded her as a beneficiary. She claimed that her niece unduly influenced the testator, who allegedly lacked testamentary capacity.
In response, her brother applied to summarily dismiss her challenge against the will. The Alberta Court of King's Bench granted his application and found her claims meritless. This prompted her to appeal.
Last May, the Alberta Court of Appeal dismissed her appeal. The appeal court found no evidence that the niece exercised undue influence over the testator, who had testamentary capacity when he signed the will.
The brother and the niece sought enhanced costs, specifically solicitor-and-own-client costs, totalling $46,551.87 and $34,798, respectively. They argued that the appellant made meritless claims, engaged in litigation misconduct, and rejected reasonable settlement offers.
Costs of $50,000 awarded
The Alberta Court of Appeal accepted that the appellant’s concerns about her father’s will were genuine. However, the appeal court ultimately deemed these concerns mistaken.
The appeal court found no evidence of undue influence in the drafting and execution of the will. While the testator’s mental state might have fluctuated in his final days, the evidence sufficiently established his capacity to make the will at the time of signing, the appeal court decided.
The appeal court ordered the appellant to pay $50,000 in total costs to her brother and her niece, with an initial payment of $12,000 plus interest to be obtained from the security that she posted for the appeal.
The appeal court calculated that the two respondents would have been entitled to double costs of $32,602.50 each under column 4 of schedule C of the Alberta Rules of Court, Alta Reg 124/2010. However, the appeal court reduced the amounts to $25,000 each, given the overlap in their arguments.
The appeal court noted that the respondents made reasonable settlement offers by telling the appellant that they would pay her solicitor-client costs if she discontinued the action. The appeal court said that her failure to accept these offers contributed to its decision to award these costs against her.
The appeal court rejected the appellant’s request for the estate to pay her costs. While the appellant’s concerns about the will were understandable, the circumstances of this case did not rise to the level of reprehensible, scandalous, or outrageous conduct required to justify solicitor-client costs, the appeal court explained.
