Who Pays The Costs? Responsibility For Legal Fees In Disputed Estates Matters

In the matter of Prevost v. Prevost Estate, 2015 NSSC 10, Justice Michael Wood was called upon to determine who should pay costs flowing out of a contested Court application which sought an accounting by the personal representative of the Prevost Estate.

Background

Claude Prevost died on August 24, 1996. His will was not probated until May 2, 2006 at which point Tyrone Prevost was appointed personal representative. Joslyn Prevost was the personal representative of the estate of Eric Prevost. The estate of Eric Prevost was a beneficiary under the will of Claude Prevost.

In June 2014 Joslyn Prevost filed a Notice of Application seeking an accounting. The Estate objected on the basis that the application was premature and that the estate would provide an accounting at the appropriate point in time.

At the November 5, 2014 hearing counsel for the estate indicated that the personal representative did not object to providing an accounting but needed time to do so. He suggested that January 31, 2015 was a suitable target and accordingly an Order was issued requiring the accounting to be done by January 31, 2015. The only remaining issue was costs.

Position of the Parties

Joslyn Prevost sought payment of her costs on a solicitor/client basis. She submitted that the application was unnecessary and that all of her costs should be paid by the personal representative personally.

The personal representative also took the position the application was unnecessary as he had always been prepared to provide disclosure of financial records at the appropriate time. He suggested that Joslyn Prevost should bear all of her costs and that he should be reimbursed at least a portion of his legal expenses.

Decision

Justice Wood agreed with both parties that the application was unnecessary. He stated:

"One would normally expect that a personal representative and beneficiary would cooperate in the exchange of financial information and that a formal accounting could be avoided. In some cases this will not be possible and that is obviously the situation here. Where an estate has been open for this length of time, it is not unreasonable for a beneficiary to request an accounting if the informal disclosure of financial information is not satisfactory to them." Counsel for Joslyn Prevost argued that the personal representative was in breach of the duty to provide an accounting within 18 months as set out in Section 69(1) of the Probate Act and therefore he should be...