Special Costs Awarded Against Plaintiffs Who Alleged But Failed to Prove Undue Influence

Stewart v McLean 2010 BCSC is one of several decisions where plaintiffs have alleged, and then failed to prove an allegation of undue influence.

The rationale is that undue influence is a form of civil fraud, which is a serious allegation to advance.

Special costs essentially mean that the losing party pays the entire legal fees of the winning party, rather than the usual “contribution” in that the scale of “usual” cost awards, are less than the actual legal fees charged, which are usually greater than the costs awarded.

The facts in the Stewart case are a frequent estate litigation scenario.

Children of a deceased parent brought action against the second spouse, alleging the spouse exercised undue influence over the deceased in order to pressure the deceased to transfer the matrimonial home into joint tenancy, and to set the transfer aside.

The Court found no such evidence and in fact found the opposite- that the deceased was competent, sharp, and independent until death. She exercised her own mind over financial matters.

The court found the plaintiffs allegations reprehensible and thus the award of special costs?

COSTS

[112] The defendants seek special costs. An award of special costs should be made when a party’s conduct is reprehensible. In Garcia v. Crestbrook Forest Industries Ltd. 1994 CanLII 2570 (BC CA), (1994), 119 D.L.R. (4th) 740 at 747, 9 B.C.L.R. (3d) 242 (C.A.), Lambrt J.A. explained “reprehensible”:

… the word “reprehensible” is a word of wide meaning. It encompasses scandalous or outrageous conduct but it also encompasses milder forms of misconduct deserving of reproof or rebuke. Accordingly, the standard represented by the word “reprehensible”, taken in that sense, must represent a general and all encompassing expression of the applicable standard for the award of special costs.

[113] He then clarified at 748:

… the fact that an action or an appeal “has little merit” is not in itself a reason for awarding special costs … Something more is required, such as improper allegations of fraud, or an improper motive for bringing the proceedings, or improper conduct of the proceedings themselves, before the conduct becomes sufficiently reprehensible to require an award of special costs.

[114] I find the plaintiff’s allegations reprehensible. They were completely unfounded and attacked her brother’s character. In her statement of claim, the plaintiff alleged that the transfer of the house was made “while the Deceased was in failing health and subject to undue influence exerted on her by the said Defendant”; that the gifts of funds were at “the instigation of the Defendant Donald Emil McLean who deliberately misinformed the Deceased”; and that the defendants “have been unjustly enriched through the Defendant Donald Emil McLean’s manipulations of the Deceased” (emphasis added). The statement of claim also referred to “the abuse of fiduciary duty by the said Defendant” (emphasis added). These are serious allegations, which, as Goldie J.A. noted, “sto[p] just short of fraud”: Hamilton v. Sutherland, 1992 CanLII 1127 (BC CA), [1992] 5 W.W.R. 151 at 163, 68 B.C.L.R. (2d) 115 (C.A.).

[115] In McLean v. Gonzalez-Calvo, 2007 BCSC 648 (CanLII), 2007 BCSC 648, 36 E.T.R. (3d) 126, MacKenzie J. reviewed the law of special costs in British Columbia estate cases in which the unsuccessful party alleged undue influence or proceeded with a claim that was bound to fail because of the absence of any basis for it. Justice MacKenzie noted that in a number of cases, special costs have been awarded when undue influence was unsuccessfully alleged. These include Benekritis v. Benekritis Estate, [1998] B.C.J. No. 171 (S.C.); Bates v. Finley, 2002 BCSC 159 (CanLII), 2002 BCSC 159, 43 E.T.R. (2d) 1; and Kouwenhoven Estate v. Kouwenhoven, 2001 BCSC 1402 (CanLII), 2001 BCSC 1402, 14 C.P.C. (5th) 154.

[116] In determining whether special costs should be awarded on this basis, MacKenzie J. considered whether the plaintiff had substantial time to consider his or her allegations and whether the allegations were based on speculation and innuendo. She also took into account the fact that the defendants had warned the plaintiff and his counsel that they intended to seek special costs and had given them cases in which special costs had been awarded because the allegations of undue influence were made without supporting evidence. Thus, the plaintiff could not say that he was unaware of the seriousness of his allegations or the law on the topic.

[117] In the present case, the plaintiff was well aware of the gravity of her allegations against her brother. In the previous litigation between the parties (Stewart v. McLean, 2003 ABQB 205 (CanLII), 2003 ABQB 205, 49 E.T.R. (2d) 294), Belzil J. found:

[12] An allegation of undue influence on any testator is extremely serious, and as was pointed out in Vout v. Hay, this is a species of fraud. It was clear from her testimony before me that this allegation had a devastating emotional impact on Mona Stewart in particular, and was the cause of enormous embarrassment and humiliation for her, not only within her extended family but within her community of Powell River, B.C., as well.

[14] Courts have long held that serious costs consequences must flow from an unproven allegation of undue influence. … These costs consequences are intended to discourage litigation of unsubstantiated allegations which have virtually no chance of success but which cause enormous distress.

[21] In my view, the allegation of undue influence should have been abandoned months before this trial started, and certainly should not have been advanced at trial as there was no realistic possibility that Donald McLean could prove, on a balance of probabilities, that there was any undue influence surrounding the execution of the Will of May 13th, 1997.

[118] Justice Belzil assigned ten percent of the solicitor-client costs awarded to the plaintiffs from the estate to the undue influence issue and directed that the Defendant reimburse the estate this amount.

[119] The plaintiff knew that these were serious allegations which would likely cause emotional distress to Donald McLean and which could result in a significant costs order. She persisted with her claim despite having received the medical evidence that her late mother was competent and despite knowing that her mother wished to equalize financial matters between her son’s and daughter’s families. The plaintiff knew she had no evidence except for speculation and innuendo. Notwithstanding this, she pursued her claim.

[120] The plaintiff’s pursuit of this lawsuit in light of the facts and her complete lack of evidence appears to have been motivated by greed and retaliation directed towards her brother for opposing probate of their late uncle’s will. It is one thing to pursue litigation based on suspicious conduct grounded in facts, which may or may not be accepted by the trier of fact; it is another to pursue it and provide no substantive evidence in support. Her allegations were unfounded and her motive improper.

[121] For these reasons, I find the defendants are entitled to special costs

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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