Losing party in estate litigation not liable for costs from unaccepted settlement offers
The British Columbia Court of Appeal has refused to award costs to a successful appellant in an estate litigation for settlement offers given to but unaccepted by the unsuccessful party.
In Coad v. Lariviere, 2022 BCCA 350, Sasha Coad was the successful appellant in an estate litigation, where the appellate court reversed a decision by the trial court. The trial court ruled that Barbara Lariviere died intestate and that she and Coad were not in a marriage-like relationship. As such, Lariviere’s heir on intestacy was her mother, Olga Phillips.
Phillips disputed Coad’s status as a common law spouse before the trial court. She died during litigation, and the action was continued by the estate administrator, Dianne Phillips.
The appellate court ordered costs payable from Lariviere’s estate for both Coad and the estate administrator. Coad sought costs from the Phillips estate and declarations to have the Phillips estate excluded from costs from the Lariviere estate.
Coad argued that the unsuccessful party is liable for trial costs, double costs since his initial offer to settle should have been accepted, special costs, and that the administrator should not receive any administrative fees, legal costs, or non-essential expenses.
The appellate court agreed in part.
Rejection of settlement offer not considered by appellate court
While unsuccessful parties on appeal are generally liable for costs, probate actions are not always that straightforward, said the court, but it found that ut was clear that Coad was entitled to his trial costs from the Lariviere estate.
As for the settlement issue, while the appellate court was aware that Coad felt he was treated poorly, there was no evidence that anyone acted in a manner that suggested fraud, misrepresentation, or undue influence. The appellate court did not consider Coad’s offers, since they were marked without prejudice and did not contain a clause that they would be brought to the court’s attention.
As for the estate administrator, she was obliged to defend the appeal and was entitled to costs on an indemnity basis from the Lariviere estate.