Ontario Court of Appeal finds appeal assailing will’s validity 'possibly vexatious'

The Ontario Court of Appeal has ordered an appellant to pay a $20,000 security for costs after he challenged the validity of a will and who apparently possessed the means to indemnify the respondent if he won.

The respondent in Ducharme Estate v. Thibodeau, 2022 ONCA 661 was an estate trustee who applied for probate of the testator’s will. The appellant, who had a relationship or friendship with the testator, filed a notice of objection, which ended up delaying and complicating the will’s probate.

The appellant provided no evidence to support her challenge to the will’s validity. She withdrew her notice of objection the day before the scheduled hearing and her lawyers did not attend the hearing for the determination of costs. The application judge issued probate and ordered the appellant to pay the respondent costs of $47,147.90.

The appellant brought a substantive appeal challenging the judge’s decision finding the will valid and a costs appeal. The respondent filed a motion seeking security for costs under r. 61.06(1)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

The appellant argued that the application judge failed to initiate his own inquiry before granting probate into the appellant’s allegation that the testator had provided instructions to his lawyer to alter the will.

Appellant ordered to pay motion costs, $20,000 as security for costs

The appellate court ordered the appellant to pay the respondent the motion’s costs of $5,100, inclusive of harmonized sales tax and disbursements, and $20,000 as security for costs. The appellant had to deposit this amount by October 14 or the respondent could file a motion to dismiss her appeal.

The respondent satisfied the preconditions of r. 61.06(1)(a), the appellate court held. Setting security for costs at $20,000 was reasonable and just in the circumstances, the court said.

First, the appellate court found good reason to believe that the appeal appeared devoid of merit. The court found that the appellant appealed from the same order that she conceded and failed to provide any evidentiary record supporting a challenge to the will’s validity.

The court agreed with the respondent’s argument that, even if the testator’s lawyer failed to carry out his instructions to alter the will, this situation might make a remedy available against the lawyer but would not affect the will’s validity.

Second, the appellate court ruled that the “frivolous and vexatious” precondition in r. 61.06(1)(a) was present. The court found reason to believe that the substantive appeal was a strategy to delay distribution, while related litigation against the testator’s solicitor was pending and to advance a costs appeal without needing to seek leave to appeal costs, something which was rarely granted.

The court noted that the appellant made unsupported allegations of invalidity in her notice of objection, which delayed probate; filed an apparently frivolous appeal, which she seemed to believe would delay the estate assets’ distribution; and initiated a separate proceeding against the testator’s former lawyer who allegedly received instructions to amend the will.

Third, the appellate court concluded that the precondition regarding insufficiency of assets in Ontario in r. 61.06(1)(a) was met. The appellant was not an Ontario resident, had no registered property in Essex County where she had previously lived, and had no evidence disputing the respondent’s allegation that she probably had no property in the province.

Lastly, making a security for costs order would not be unjust to the appellant, the appellate court said. The appellant acknowledged that she owned property in New Brunswick and appeared capable of paying the litigation’s costs.

On the other hand, the respondent should not be subject to the risk of bearing his own costs when potentially defending himself against the appellant’s “apparently unmeritorious and possibly vexatious” appeal, the court said.