Appeal court refuses to order estate to pay special costs to will-maker’s brother
Following an order to rectify an erroneously drafted will executed by a woman who did not review the draft provided by her solicitor, the British Columbia Court of Appeal refused her brother’s request for special costs after his unsuccessful appeal.
In Peckover v. Wall, 2026 BCCA 350, the appellant was the testator’s brother, while the respondent was the testator’s surviving spouse and the residuary beneficiary of her estate.
Under s. 59 of BC’s Wills, Estates and Succession Act, 2009 (WESA), the respondent filed a petition to rectify the will, specifically to align a bequest to the appellant with the testator’s intent.
The respondent claimed that the will failed to reflect the testator’s intention to bequeath only the surface rights in a property to the appellant because the testator’s lawyer did not follow her instructions.
Opposing the petition, the appellant asserted that the respondent failed to satisfy the legal test for rectification in Simpson v. Zaste, 2022 BCCA 208.
BC Supreme Court orders will rectification
A chambers judge of the Supreme Court of British Columbia issued an order rectifying the testator’s will. The judge directed the estate to pay the respondent costs, indemnifying the appellant.
In the cost award, the judge recognized that the difficulties leading to the litigation partly arose because the testator did not read the draft will sent by her solicitor due to her health, which had swiftly declined within the brief period between her instructions to her lawyer and her death.
BC Court of Appeal denies appeal
On appeal, the appellant alleged that the chambers judge committed an error by interpreting and applying the requirements of s. 59 of WESA too narrowly.
On Feb. 10, 2026, the BC Court of Appeal dismissed the appeal.
Costs submissions
The appellant asked the appeal court to order the estate to pay all parties special costs of the appeal, in line with the principles relating to estate litigation costs, the chambers judge’s costs award, and the dispute’s nature.
On the other hand, the respondent wanted the appellant to pay the ordinary costs of the appeal.
Award of ordinary costs of appeal
Based on the salient circumstances and policy considerations, the BC Court of Appeal ordered the appellant to pay the respondent the ordinary costs of the appeal.
The appeal court saw no reason to depart from the general rule in s. 44 of BC’s Court of Appeal Act, 2021, which entitled the successful respondent to appeal costs from the unsuccessful appellant. The appeal court found it unnecessary to deplete the estate by requiring it to pay the appeal costs.
The appeal court acknowledged that the appeal was not entirely frivolous.
However, the appeal court held that the appellant unreasonably appealed against the rectification order. The appeal court pointed out that it had clearly settled the test for rectification under s. 59 of WESA in Simpson v. Zaste.
The appeal court added that the appellant received indemnification from the estate for his costs for the BC Supreme Court dispute and achieved no success on appeal.
The appeal court explained that the chambers judge:
- resolved the dispute by applying the relevant test, based on overwhelming evidence
- realistically refused to find the testator at fault for not reading the wrongly drafted will before executing it, given the state of her health at the time
- issued a costs order sufficiently addressing the testator’s contribution to the difficulties leading to the litigation
British Columbia Court of Appeal’s prior estate cases
Here are some other recent estate-related decisions from the Court of Appeal for British Columbia.
On Apr. 7, the appeal court ordered an estate to pay all parties’ reasonable indemnity costs in a proceeding that reasonably required litigation to determine the validity of a 1995 will, given its content and the surrounding circumstances.
On Jan. 20, the appeal court ordered an estate’s distribution under the testator’s 2001 will, given the evidence of suspicious circumstances in the executor’s role in assisting with the preparation of a 2018 will that benefited herself and her siblings.
On Jan. 16, the appeal court allowed an appeal challenging a chambers judge’s finding that one testator’s will made in 2019 revoked the other testator’s testamentary dispositions in a will they jointly executed in 1995.
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