SUPREME COURT OF NOVA SCOTIA Probate Court of Nova Scotia Citation: Ahern Estate (Re), 2018 NSSC 294 Date: 20181122 Docket: Hfx. No. 471092 Probate No. 60756 Registry: Halifax Between: John K. Ahern v. Martin C. Ahern, in his capacity as personal representative of the Estate of William Kevin Ahern Applicant Respondent DECISION ON COSTS Judge: Heard: The Honourable Justice Kevin Coady July 26, 2018, in Halifax, Nova Scotia Final Written Submissions: Counsel: September 28, 2018 - Applicant's and Respondent's Submissions on Costs John K. Ahern, Self-Represented Andrew P. Nicol, for the Respondent
2 By the Court: [1] On April 9, 2018 the Applicant, John K. Ahern, filed a Notice of Application pursuant to the Probate Act. The relief sought is set forth as follows: The Applicant, John K. Ahern, son of the deceased, William Kevin Ahern, has applied to a Judge of the Probate Court of Nova Scotia, at the Probate District of Halifax, the Law Courts, 1815 Upper Water Street, Halifax, Nova Scotia, B3J 1S7, for an Order under Section 69(2) of the Probate Act requiring Martin C. Ahern to give an accounting with respect to his actions as personal representative of the Estate of William Kevin Ahern, to be heard on June 25, 2018 at 2 p.m. [2] The Applicant, John K. Ahern, filed an Affidavit in support of the above Application. It states as follows: I, John K. Ahern, of 841 C South Racine Ave., Chicago, Illinois, United States of America make oath and say: 1. I am a person interested in this estate because I am the son of William Kevin Ahern, deceased ("Mr. Ahern"). 2. The following is a list of the other persons interested in this Estate as defined in subsection 63(1) of the Probate Court Practice, Procedure and Forms Regulations: a) Daniel Ahern ("Daniel"), son of Mr. Ahern; b) Martin Ahern ("Martin"), son of Mr. Ahern; c) Barry Ahern ("Barry"), son of Mr. Ahern. 3. The facts on which this application is based are: a) Mr. Ahern died on June 1, 2013. He had been predeceased by his wife, Mary Josephine Ahern who died on February 13, 2007. b) Mr. Ahern executed a Last Will and Testament on June 15, 1995. Under the terms of the will, if Mary Ahern predeceased Mr. Ahern, the residue of the estate was to be divided equally between Daniel, Barry, John and Martin. Martin was appointed the Executor of the Estate.
3 c) By Grant of Probate issued on July 23, 2013, Martin was appointed as Personal Representative of the Estate of Mr. Ahern. d) An Inventory was filed by Martin with the Probate Court on December 24, 2013. e) Among the assets owned by Mr. Ahern at the time of his passing was real estate located at 3152 Mayfield Avenue, in Halifax, Nova Scotia. f) In addition to the property at 3152 Mayfield Avenue, Mr. Ahern owned other real estate at the time of his death. He also had personal property assets. Upon information and belief, the Inventory as filed with the Court references a total estate value of $784,008.93. g) Despite numerous requests from me, very limited information has been received from Martin with respect to the administration of the Estate. In particular, Martin has been asked but to date has not provided details of the following: Estate expenses which have been paid and/or which are payable; Any plans or intentions to sell any of the real estate owned by Mr. Ahern at the time of his death; periodic updates as to the assets still held by the Estate and their value; details with respect to when it is anticipated there will be a closing of the Estate and distribution of the assets to the named beneficiaries. [3] On May 28, 2018 the Executor, Martin C. Ahern, filed a Notice of Objection to the Application. The content of that objection is as follows: 1. The Respondent does not object to giving an accounting to the residuary beneficiaries including the Applicant. 2. The Respondent has provided information on the administration of the Estate of William Kevin Ahern to the residuary beneficiaries, including the Applicant, during the period of his administration of the Estate of William Kevin Ahern. 3. The Respondent has provided an interim accounting to all of the residuary beneficiaries including the Applicant. 4. Title to real property referred to in the Applicant's affidavit vests directly in residuary beneficiaries under the provisions of the Probate Act, RSNS
4 1989, c 479. Title does not vest in the Respondent as the personal representative of the Estate of William Kevin Ahern. 5. The Respondent does not have the authority to sell the real property, unless the Respondent obtains a licence to sell the real property pursuant to s. 50 of the Probate Act, RSNS 1989, c 479, as requested by the Applicant. 6. The Respondent does not believe a hearing for an order to be issued under s. 69(2) of the Probate Act to give an accounting is necessary because the Respondent has agreed to and has provided an accounting to the residuary beneficiaries, including the Applicant. 7. The Respondent requests to be heard on costs. A hearing was held on July 26, 2018 at which time the Application was dismissed by way of an oral decision. [4] John Ahern's complaints were many and varied and addressed the following issues: Sale of the Home: The Executor was challenged by the history and condition of the Estate home. The Applicant's position was: "I do not in any way consent to the proposed sale of the property." General Contents of the Home: The Applicant's position was: "I refuse to allow any property to be taken from the house until I have time to review and also receive a set of keys... so that I can access my property." Applicant's Contents of the Home: "The china was one of the few things my mother clearly bequeathed to me, with the full approval of my father. This is now becoming a case of theft, rather than of executing a will." John Ahern became a "thorn in the side" of the Executor and counsel for the Estate. He took the position that he had "clearly been left out of all the discussions to date"
5 between the Executor, Daniel Ahern and Barry Ahern. It is noteworthy that none of the other residual beneficiaries supported John K. Ahern on this Application. [5] I was very impressed with the manner in which the Executor, Martin C. Ahern, conducted his responsibilities. Not only was he constantly challenged by John K. Ahern, but the property had been left by his parents in a deplorable state. The following are some of the obstacles faced by Martin C. Ahern: The deceased and his spouse were essentially hoarders. They threw away nothing. They hid money and other valuables in magazines, books, etc. The Executor had to search every object before removing it from the home. Also in the home was property belonging to the children. It could not be dealt with given that ownership was uncertain. After the deceased's death, the Executor had to deal with a domestic oil spill that had occurred in 2011. The oil spill involved interior, inter-connected oil tanks that had leaked the majority of the oil in the recently-filled tanks into the basement. The deceased did not take any steps to address the oil spill and lived with it. After his death the obligation to remediate the site was left to the Executor. The remediation started in 2013 and was not completed until 2017. The property had never been migrated and that process was not completed until late 2017. The Executor was required to retain Cambridge Financial Services to produce records necessary to finalize the Estate. That project was completed in early 2018. The Applicant, John K. Ahern, was an ongoing obstacle in the completion of the above tasks. Not only did he take objection to efforts to move the file along, he
6 accused the Executor of illegal activities and called the police to unnecessarily intervene. [6] The Executor is seeking solicitor-client costs on this failed and unnecessary Application. It is his position that the matter was more complex than it should have been due to the factors outside of his control. Further, he submits that the actions of John K. Ahern amounted to ongoing obstruction and contributed to the Estate's increased legal fees and disbursements. The Executor argues that the Applicant be personally responsible for any costs award. [7] Counsel for the Executor submitted his accounts in support of his request for solicitor-client costs. That document indicates that this file was active from March 17, 2018 until September 28, 2018. Total legal fees amounted to $16,097. Total disbursements amounted to $1,262.79. HST amounted to $2,603.98. The sum of these costs totals $19,963.77. [8] John K. Ahern represented himself on this Application. In his brief on costs he has advanced several reasons why he should be immune from costs. The following are some of the reasons: The Executor, Martin C. Ahern, has requested and received a threemonth adjournment of the passing of accounts until January 2019. Mr. John K. Ahern suggests this amounts to misleading this Court. In his brief he stated, "Martin has cited no other unforeseeable event
7 other than a two-week need to attend to the illness of Martin's adult child." An award of costs will cause him financial hardship. He states that he has a large family and an ailing wife, all of whom rely on him for their support. He also suggests that the timing of these cost submissions essentially robbed him of the perceived benefits of the passing of accounts. In his brief the Applicant stated: Any evidence of significant and substantial mismanagement and wasting of the Estate resulting that came to light from full financial disclosure would have allowed me to argue more strongly the reasonable basis for my Application. If there was skullduggery, with the aide of information produced at the Accounting, I could cite hard financial facts demonstrating the degree to which Martin may have misrepresented his Executorship to the Court. As such, I am significantly prejudiced to have to argue against the awarding of costs at this time without full financial disclosure. In fact, the avoidance of full financial disclosure before the awarding of costs may be an unstated reason for Martin petitioning for an adjournment of the passing of accounts until January 2019. He further suggests it is premature to issue a costs decision in advance of the passing of accounts. He argues that this accounting would have provided him with information that would discredit the Executor. Mr. John K. Ahern submits that if costs are awarded, they should "be paid by either Martin or, in the alternative, by the Estate." This statement is clear evidence the Applicant does not fully understand the role of costs in litigation. [9] The Executor was one hundred percent successful on this Application and, as such, is entitled to costs. The choices made by the Applicant, and the actions taken, dictate that any cost award should be borne solely by John K. Ahern and not the estate or the other beneficiaries. Authority for this approach is found in Wittenberg v. Wittenberg Estate, 2015 NSCA 79, at paras. 99 and 100:
8 [99] To the extent that there was a traditional practice of paying costs of all parties out of the estate, those days are over. Provided that a personal representative is discharging her duties and is acting reasonably, she can be expected to be indemnified from the estate. Not so with an adverse party, who may obtain party-party costs if successful, but may have to bear her own costs or even have to pay them, if unsuccessful. If the court proceeding can be ascribed to conduct of the deceased or residuary beneficiaries, a losing party may still recover costs from the estate, although usually on a party-party basis (Casavechia, supra; Townsend v. Doherty, 1993 O.J. No. 713, per Borins J. as he then was; Gamble v. McCormick, 2002 O.J. 2964 (S.C.J.); Hazel v. Mjeda, 2000 ABQB 549 (CanLII); Oldfield v. Oldfield Estate, 1994 O.J. No. 2529). [100] Awarding costs against or out of an estate means that the expense usually is borne by the residuary beneficiaries. It is appropriate to ask whether that is a proper burden for them to bear. Where the personal representative is discharging her duties and there is no other unsuccessful party to share at least some of the burden, there is nothing that can be done to mitigate this indirect charge on the generosity of the testatrix, at the expense of the residuary beneficiaries. But where, as here, there is an unsuccessful party who is the cause of the litigation, it is proper that the unsuccessful party bear much of the burden. Moreover, in this case, there was very little lay evidence and no expert evidence, sustaining Mr. Wittenberg's allegations. Finally, those allegations were not confined to incapacity, but also cast the aspersion of undue influence. There can be no debate over the fact that John K. Ahern was the cause of this litigation and was wholly unsuccessful. [10] The Executor seeks costs on a solicitor-client basis. In the case of the Maskell Estate, 2017 NSSC 325, Justice Hunt canvassed the circumstances when solicitor-client costs will be awarded in estate litigation against a party. He stated as follows: [15] Solicitor-client costs are rare in Nova Scotia probate cases. I have examined the positon [sic] of the parties and have weighted the arguments including the argument of the successful parties that to adopt the party-party costs regime will in effect punish the Estate and beneficiaries.
9 [17] My view of the controlling legal authorities is that solicitor-client costs ought to be reserved for exceptional and extraordinary circumstances, instances of misconduct or situations calling for denunciation of reprehensible conduct. [11] I find on the evidence that John K. Ahern's Application was frivolous in nature and vexatious in its objectives. Notwithstanding, I do not find that solicitorclient costs are appropriate in the particulars of this family. It is my conclusion that a lump sum award is appropriate in these circumstances. [12] The subject of costs is governed by Civil Procedure Rule 77 which states: 77.02 (1) A presiding judge may, at any time, make any order about costs as the judge is satisfied will do justice between the parties. (2) Nothing in these Rules limits the general discretion of a judge to make any order about costs, except costs that are awarded after acceptance of a formal offer to settle under Rule 10.05, of Rule 10 - Settlement. 77.03 (3) Costs of a proceeding follow the result, unless a judge orders or a Rule provides otherwise. 77.08 A judge may award lump sum costs instead of tariff costs. 77.10 (1) An award of a party and party costs includes necessary and reasonable disbursements pertaining to the subject of the award. Costs are intended to provide a substantial but not a complete indemnity against costs incurred by a successful litigant. The objective is to find a number that does justice between the parties. It is a matter of judicial discretion.
10 Conclusion [13] In conclusion, I order John K. Ahern to pay to the Estate of William K. Ahern the sum of Ten Thousand Dollars ($10,000). In the event he does not pay this sum, it shall be deducted from his residual share of the Estate. In no case will the Estate, or the other beneficiaries, be affected by this costs award. It is entirely the responsibility of John K. Ahern. Coady, J.