Background
Robert Colin Bruce challenged the deceased’s 2015 will, while Paula Margaret Bruce sought probate of that will. The two proceedings were heard together. Robert alleged lack of testamentary capacity, suspicious circumstances, undue influence, a testamentary contract and proprietary estoppel. In the principal judgment, the Court upheld the 2015 will; Robert abandoned his capacity claim in closing submissions.
Paula sought indemnity costs from Robert, including after settlement offers made in May 2026. Robert instead sought to have both parties’ costs paid from the estate, or alternatively no costs order.
The Court’s Holding
Williams J held that some aspects of Paula’s involvement in preparing and executing the 2015 will reasonably warranted investigation of knowledge and approval and undue influence. The Court assessed those issues as accounting for about 30% of the proceedings’ total costs, and ordered that 30% of each party’s costs be paid from the estate on an indemnity basis.
The balance of Robert’s case—including his abandoned capacity allegation, the testamentary contract and proprietary estoppel claims, and unmeritorious contentions about an earlier property transaction—did not warrant estate-funded costs. Robert was ordered to pay 70% of Paula’s costs on the ordinary basis and to bear his own remaining costs. Paula’s unrecovered costs were payable from the estate on an indemnity basis under the executor-costs rule. The Court declined to award Paula indemnity costs based on her Calderbank and formal offers because Robert’s refusal was not unreasonable at the time.
Key Takeaways
- Probate litigation may justify estate-funded costs where circumstances reasonably call for investigation of a will.
- An executor who reasonably defends a will can obtain an indemnity from the estate for unrecovered costs.
- A party’s failure to accept a settlement offer will not automatically justify indemnity costs where the refusal was reasonable when made.
Why It Matters
The decision illustrates a tailored costs approach in probate disputes: legitimate investigation of concerning will-making circumstances can be funded by the estate, but unsuccessful personal claims and unmeritorious allegations remain the litigant’s responsibility.
It also confirms that the ordinary consequences of settlement offers may be displaced where an unresolved probate challenge had reasonable prospects and required factual testing at trial.