Estate Planning

Costs on a Cy-Pres Application

By Hull and Hull LLP

Yesterday, I discussed Fort Sackville Foundation v. Darby Estate, 2010 NSSC 27 (CanLII). Today, I will discuss the matter of the costs of the proceedings, reported at Fort Sackville Foundation v. Darby Estate, 2010 NSSC 45 (CanLII).

The court had dismissed the application by the charity for a declaration that it was the successor charity, or that it was entitled to the bequest upon the application of the cy-pres doctrine.

The charity requested solicitor and client costs from the estate. The successful residual beneficiaries suggested that the charity should receive no costs at all, or at best, party and party costs. The residual beneficiaries noted that any award of costs would come from their entitlement under the estate, and thus, in effect, the successful parties would be paying the unsuccessful party's costs.

The court awarded solicitor and client costs to the charity. The court noted that the 'dispute' was created less by the parties, and more by the wording used by the testator, which wording 'fuelled' the issues. Although the arguments of the charity failed, they were 'justified' arguments, and arguments 'based on reason'.

In Ontario, the court has made similar costs rulings in circumstances where it can be said that the parties have acted reasonably in bringing the matter before the court. However, a different outcome might result if the court was of the view that one of the parties acted unreasonably.

Thank you for reading.

Paul Trudelle

Full post as published by Toronto Estate Law Blog on May 27, 2010 (boomark / email).