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The Usual Rules For Costs In Trusts

Costs

The Usual  Rules For Costs In Trusts

In matters of trust administration, the “usual rule” is for the court to award special costs to all parties, payable out of the estate or trust: Collett Estate, Re, 2005 BCCA 291 (B.C. C.A.), at paras. 5-6, Miles v. Vince, 2014 BCCA 418 (B.C. C.A.), at paras. 6-7.

 

Collett stated:

Thus, the Public Trustee is correct that it is “not uncommon” for the court to award special costs to all parties payable out of the estate.  That usual rule, which applies in most cases, will not apply only where there is good reason for a different order.

[7]                The general principles that guide the exercise of the discretion to award costs in proceedings in the Supreme Court involving executors and trustees are set out in Turner v. Andrews (1999), 23 C.C.P.B. 84, 30 E.T.R. (2d) 126 (B.C.S.C.), aff’d 85 B.C.L.R. (3d) 53, 2001 BCCA 76 That case concerned an application by a plaintiff for an order that his reasonable legal costs be paid prospectively out of the trust fund in issue in his representative action against the trustees of his pension fund.  In dismissing the application, Allan J. summarized the relevant principles as follows:

[8]     Section 86 of the Trustee Act, R.S.B.C. 1996, c. 464, reflects the historic statutory authority which permits a trustee to seek the opinion, advice or direction of the Court on a question respecting the management or administration of trust property. In such circumstances, the Court may order the costs of the parties to be paid out of the estate. That principle was expanded in Re Buckton, [1907] Ch. 406 (Eng. Ch. Div.) which held that, in litigation against a trustee, the legal fees of a plaintiff beneficiary may be paid out of the trust fund on an indemnity basis where the issue concerns the interpretation of the trustee’s powers. Buckton considered the beneficiary’s entitlement to costs in three classes of cases:

(1) An application made by trustees of a will or settlement, asking the Court to construe the trust instrument for their guidance; to ascertain the interests of the beneficiaries; or to answer a question which arises in the administration of the trusts. In such instances, the costs of all parties, which are necessarily incurred for the benefit of the estate, should be taxed as between solicitor and client and paid out of the estate.

(2) An application made by the beneficiaries as a result of difficulty of construction or administration of the trust which would have justified an application by the trustees. Again the application is necessary for the administration of the trust and the costs of all parties, which are necessarily incurred for the benefit of the estate, are paid out of the estate.

(3) An application made by the beneficiaries who make claims adverse to other beneficiaries. Such litigation is adversarial in nature and, subject to the Court’s discretion, the unsuccessful party bears the costs of those whom he or she brings to Court.

 

However, the “usual rule” applies only where “an executor or trustee is required to seek the court’s guidance in interpretation of a will or there are difficulties with construction or administration of a trust,” and is not available in relation to an application “made by the beneficiaries who make claims adverse to other beneficiaries”: Eckford v. Van Der Woude Estate, 2013 BCSC 1729 (B.C. S.C.), at para. 60.

Application of this criteria means that the “usual rule” applies to some but not all of the proceedings at issue in this case.

The Court stated at p. 415:

It is often difficult to discriminate between cases of the second and third classes, but when once convinced that I am determining rights between adverse litigants I apply the rule which ought, I think, to be rigidly enforced in adverse litigation, and order the unsuccessful party to pay the costs.

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