Challenging a Will Comes at a Price
A would-be challenger of a will had better be sure there is some merit to their case, or they will have to pay the consequences. Once it becomes clear their case is without hope, the challenger should drop their claim to avoid a significant costs award. Frances Jamison did not do this when she challenged her mother’s will in Shier Estate (Re), 2018 ABQB 494 and 2018 ABQB 828.
Frances may have felt slighted when her mother, Anne Shier, left most of her estate in the form of land to Frances’ siblings, Jack Shier and Margaret Horton. Jack and Margaret had also been joint attorneys of Anne for the last decade of her life. Frances’ opportunity to get a larger piece came when she challenged Anne’s will, Anne’s inter vivos transfers of lands to Jack and Margaret, and over $18,000 of expenses withdrawn by Jack while he was an attorney.
The Court found Anne’s final will was valid notwithstanding attempts at influence by both Jack and Frances’ husband. It found the inter vivos transfers were valid but also that the land would have gone to Jack and Margaret as per the will even if the transfers were invalid. The Justice stated two-thirds of Jack’s impugned expenses would have to be repaid, partially due to documentation problems and partially due to breach of fiduciary duty. The Court found no problems with the rest of the accounts.
However, the Court took a dim view of Frances’ litigation overall. There was a particular questioning earlier in the litigation where it became reasonably clear that Frances’ challenge to the will would not succeed, and yet she continued. Therefore, her legal costs associated with the challenge would come from her own pocket, while Jack’s would be paid by the estate (and directly out of Frances’ inheritance). Each of Jack, Margaret, and Frances would have to pay their own legal costs associated with the accounts issue because Jack’s and Margaret’s records were imperfect.
Regarding the land transfer issue, Frances never had a good claim against Jack or Margaret, with or without unproven allegations of undue influence. Margaret tried unsuccessfully to settle with a Calderbank offer to Frances, which Frances declined. For all those reasons, the Court awarded escalated costs against Frances requiring her to pay a large portion of Jack’s solicitor-client costs and nearly all of Margaret’s for that issue.
In the end, Frances did nothing to improve her position, only managing to deplete her own savings and inheritance. This was her reward for fighting for a lost cause and disrupting her familial relationships for several years.
