Security for Costs in Estate Litigation

April 13, 2020

The issue of security for costs in an estate litigation arose in Devlin Estate (Re), 2020 NSSC 77. Security for costs is a remedy available to parties defending a claim where, if they were successful in defending the claim, they would fact undue difficulty in collecting a costs award made against the unsuccessful claimant. One example of where security for costs may be awarded is where the claimant resides outside the province. Security for costs is a discretionary remedy.

The Applicant in Devlin Estate, Catherine Summerfield, was the named executor in a holographic (handwritten) will made by the deceased, Michael Devlin. The original holographic will had been lost, but there was a copy of it from a photograph taken on a phone. Ms. Summerfield applied to the Probate Court to have the photo of the holographic will recognized as the valid will of Michael Devlin, by way of proof in solemn form.

As well as being the executor named in the holographic will, Ms. Summerfield was the sole residual beneficiary of the Estate of Michael Devlin, aside from four specific gifts of $10,000 each. Two people who were identified as next-of-kin for Mr. Devlin filed notices of objection to oppose the application to prove the will in solemn form. Ms. Summerfield then brought an application for security for costs against one of the objecting parties, who lived in the United Kingdoml

Applications for security for costs in estate matters are rare. Until recently in estate litigation in Nova Scotia, there was an expectation that people bringing claims against estates would have their costs paid from the Estate, whether they were successful or not. However, in 2015, the Nova Scotia Court of Appeal in Wittenberg v. Wittenberg Estate, 2015 NSCA 79, held that unsuccessful claimants may need to bear their own costs or even pay costs to the estate if they are unsuccessful.

Justice Moir cited the Manitoba case of Ortigoza v. Thorsnes, [2001] M.J. 148 (Q.B.), which also considered the issue of security for costs in an application for proof in solemn form of a will. The Court of the Queen’s Bench said that security for costs is discretionary, and for reasons of public policy, it would exercise discretion against ordering security for costs. One of the reasons cited was the high public importance of proving will, that doubtful wills should not should not be easily approved.

In the end, Justice Moir decided to follow the Ortigoza case from Manitoba and exercised his discretion not to award security for costs.

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