Background
Krista Wall, the surviving spouse of Patricia Peckover and residuary beneficiary of her estate, successfully obtained an order under s. 59 of British Columbia’s Wills, Estates and Succession Act rectifying Ms. Peckover’s will. The chambers judge found that the will, because Ms. Peckover’s lawyer had failed to follow her instructions, did not reflect her intention to give her brother, Charles Peckover, only the surface rights in certain property.
Mr. Peckover appealed, but the Court of Appeal dismissed the appeal in Peckover v. Wall, 2026 BCCA 145. The chambers judge had ordered the estate to indemnify Mr. Peckover for the costs below, but the parties disagreed about appeal costs. Mr. Peckover sought special costs for all parties from the estate, while Ms. Wall sought ordinary costs from him personally.
The Court’s Holding
The Court held that the usual rule that costs follow the event applied. Although estate-litigation policy may justify paying an unsuccessful appellant’s costs from the estate in exceptional circumstances, the central consideration is generally whether it was reasonable to seek appellate review. An unsuccessful estate litigant ordinarily must pay the successful respondent’s appeal costs.
It was not reasonable for Mr. Peckover to appeal. The governing test for rectification under s. 59 had already been settled in Simpson v. Zaste, 2022 BCCA 208, the appeal presented no novel or evolving legal issue, and the chambers judge had applied that test to overwhelming evidence. Because Mr. Peckover was wholly unsuccessful and had already been indemnified for the proceedings below, the Court ordered him to pay Ms. Wall’s ordinary costs of the appeal.
Key Takeaways
- Ordinary civil-cost rules generally apply to appeals in estate litigation: an unsuccessful appellant pays the successful respondent’s costs.
- An estate may bear an unsuccessful appellant’s costs only in exceptional circumstances, including where seeking appellate clarification of a novel legal issue was reasonable.
- A costs award from the estate at first instance does not automatically entitle an unsuccessful litigant to estate-funded appeal costs.
Why It Matters
The decision draws a clear distinction between first-instance estate litigation and an appeal. Even when a will-maker’s conduct or drafting problem justifies estate-funded costs below, an appellant must separately establish exceptional circumstances warranting depletion of the estate for appellate costs.
Estate litigants considering an appeal therefore face personal costs exposure when settled law governs and the challenged decision rests on strong evidence. A good-faith dispute alone is insufficient to shift appeal costs to the estate.