Special costs are frequently awarded against failed litigants of undue influence claims, but this was not the case in our Allart estate v Allart 2016 BC SC 768.
There the judge declined to do so on the basis that the plaintiff had an honest belief that her case was meritorious and her failed allegations of undue influence and suspicious circumstances were not sufficiently reprehensible by themselves to give rise to special costs.
The Court distinguished the conduct from the leading BC case of Leung v Chang 2014 BCSC 1243., finding the behaviour in Leung was more egregious than that of the defendant. For example, Leung the allegations were not supported by any evidence, or evidence was not led.
The evidence in the Allart case in support of the position of the defendant was scant and ultimately was not persuasive, and it cannot be said that there was nothing to raise her suspicions.
Madam Justice Dardi awa4ded special costs against a self represented litigant and summarized the approach to failed allegations of undue influence in estate litigation and an award of special costs in Leung v. Chang, 2014 BCSC 1243:
[50] Where an unsuccessful party has advanced but failed to prove allegations that a will was procured by undue influence, typically the usual rule will apply and costs will be assessed against that party: Maddess at para. 71; Mawdsley at para. 36. These are serious allegations which “stop just short of fraud”: Hamilton v. Sutherland, [1992] 5 W.W.R. 151 at 163 (B.C.C.A.). Whether a failed allegation of undue influence is sufficiently reprehensible that it warrants the court’s condemnation through a special costs award depends on the particular circumstances. The court frequently has found that unsubstantiated allegations of undue influence justified an award of special costs: Benekritis v. Gilbert Estate, [1998] B.C.J. No. 171 (S.C. [In Chambers]); Bates v. Finley, 2002 BCSC 159 ; Kouwenhoven Estate v. Kouwenhoven, 2001 BCSC 1402 ; Stanton v. Stanton Estate, 2008 BCSC 470 ; Maddess at para. 74.
[18] Furthermore, the fact that a party is unrepresented is not itself a basis for declining special costs. A litigant must still comply with the rules and procedures of the court; failure to do so is not excused by one’s self-represented status: Leung at para. 66.
[19] An award of special costs may be made against a litigant with indigent status in the proceeding: Sahyoun v. Ho, 2015 BCSC 392 at para. 157; Keremelevski v. V.W.R. Capital Corporation, 2013 BCSC 612 at para. 71; Leger v. Metro Vancouver YWCA, 2013 BCSC 2021 at para. 78.
