Making beneficiary bear legal costs due to unreasonable behaviour appropriate: NB Court of Appeal

Probate court had jurisdiction to put costs on person who challenged management of estate

Making beneficiary bear legal costs due to unreasonable behaviour appropriate: NB Court of Appeal

The New Brunswick Court of Appeal has upheld the apportionment of legal fees in a probate proceeding against one beneficiary for his unreasonable behaviour.

In Touchie v. Touchie, Executor of the Estate of Marilyn Carol Hirtle, 2022 NBCA 47, Dr. Michael Touchie was named the executor of his mother’s estate. His brother, Robert Touchie, appeared to have disagreements over management of the estate.

The estate was relatively straightforward. However, Robert was displeased with Michael’s management of the estate. After numerous exchanges and the hiring of legal counsel, Michael’s counsel advised him that, given Robert’s conduct, he would likely never be satisfied and should proceed with passing of the accounts. Robert objected.

The probate judge found the necessity to pass accounts based on the evidentiary record. She found that Robert’s aggressive and accusatory nature, the fact that nothing would satisfy Robert as to the management and distribution of the estate, and the legal fees were incurred because of Robert’s unreasonable actions.

She ruled that two-thirds of the solicitor-client costs be borne by Robert and deducted from his share of the estate.

On appeal, Robert argued that the probate did not have jurisdiction to award such costs and, if she did, that she did not make the appropriate determination of the reasonableness of the legal fees.

The appellate court disagreed.

Legal costs reasonably incurred, result of unreasonable behaviour

While probate costs are generally with the court’s discretion, there are two recognized exceptions: if the litigation is the fault of the testator or residual beneficiary or if there was reasonable and sufficient basis to challenge testamentary capacity, said the court.

The appellate court found no palpable and overriding error with respect to the probate judge’s determination that the legal fees were reasonably incurred. There was no reason to depart from the deference owed to the probate judge in the exercise of her discretion, said the court.

As there was no basis for appellate intervention, the appellate court dismissed the appeal.

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