Ruling lets estate’s security for costs application precede questioning of solicitor
The Alberta Court of King’s Bench has dismissed an application by the nephew of the deceased seeking to question the lawyer who had prepared his aunt’s will before the estate could proceed with its application for security for costs.
A woman executed her last will and testament in December 2019. On Oct. 29, 2022, she died, leaving an estate valued at more than $1.75 million.
The testator’s nephew – the respondent in Rajpaul Estate (Re), 2026 ABKB 294 – commenced an application in 2023 to require the estate to formally prove his aunt’s will.
In 2024, the estate applied for security for costs of $85,000, payable by the nephew under r. 4.22 of the Alberta Rules of Court, Alta Reg 124/2010.
Last March, the Court of King’s Bench ordered the production of the legal file of the solicitor who drafted the will and the testator’s medical records from September 2019 to March 2020, which would clarify the testator’s capacity when she executed the will.
The court ordered the nephew to pay the estate $5,000 to cover the cost. The court directed that the estate could renew its application seeking security for costs upon the production of the required materials.
After the production of those records, the estate revived its application. The court addressed the preliminary issue of whether it should permit the nephew to question the drafting lawyer before hearing the estate’s security for costs application.
Application to examine denied
The Court of King’s Bench of Alberta acknowledged the nephew’s argument that questioning the drafting lawyer at this stage would help the parties understand the circumstances surrounding the will’s preparation and execution, including the testator’s capacity when she executed the will and the nature and extent of the personal representative’s involvement.
However, the court agreed with the estate that allowing the examination of a third-party witness would undermine the objective of a security for costs application.
The court explained that r. 4.22(c) of the Alberta Rules of Court aimed to permit a limited review of, cross-examination on, and undertakings relating to the merits.
The court found that this rule did not allow a detailed examination of every aspect, particularly where the court still had to determine the disputed facts and credibility. At this stage, the court saw no basis to expand the scrutiny of the merits of the parties’ positions.
With the testator’s medical records and the drafting lawyer’s file, the court noted that both parties could formulate complete arguments about the security for costs application.
If the parties asserted equally meritorious positions, the court explained that this would lead to a neutral finding on the merits.
In that case, the court would focus on other factors in its r. 4.22 assessment, including whether the nephew could pay costs, whether he had assets in the province against which the cost award would be enforceable, whether an order requiring security would unduly prejudice his ability to proceed, and whether such an order would be just and reasonable.
