Wols v. Funk

2026 BCSC 668 Wols v. Funk IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Wols v. Funk, 2026 BCSC 668 Date: 20260416 Docket: S137262 Registry: Kelowna Between: Gerald David Wols, by his Litigation Guardian, The Public Guardian and Trustee Plaintiff And Mary Funk, Administrator of the Estate of George Franz Wols, Deceased, Mary Funk in her Personal Capacity, Ewald Funk, Administrator of the Estate of George Franz Wols, Deceased, and Ewald Fund in his Personal Capacity Defendants Before: The Honourable Justice Hardwick Reasons for Judgment: Costs Counsel for the Plaintiff: D.L. Polley The Defendant, Mary Funk: No Appearance The Defendant, Ewald Funk: No Appearance Place and Dates of Written Submissions: Kelowna, B.C. March 18, 2026 Place and Date of Judgment: Kelowna, B.C. April 16, 2026 Table of Contents Introduction.. 3 The Plaintiff's Position.. 4 The Defendants' Position.. 5 Costs Generally. 5 Costs in Estate Litigation.. 6 Analysis. 6 Offer to Settle. 7 Conclusion.. 9 Introduction [1] These reasons for judgment address the issue of costs following a trial of the claims advanced on behalf of the plaintiff by his litigation guardian, the Public Guardian and Trustee, pursuant to the Wills, Variation and Succession Act, S.B.C. 2009, c. 13 [WESA], in this proceeding (the "Action"). [2] My reasons for judgment following trial, released on March 11, 2026, are indexed and published at 2026 BCSC 404 (the "Trial Reasons"). As set out therein, I varied the Last Will and Testament of George Franz Wols dated March 21, 2014 (the "Will") such that the plaintiff received 8/10 shares of the net residue and the defendants received 2/10 shares of the net residue: see para. 86. [3] In respect of costs, I held as follows in the Trial Reasons: [87] Costs are awardable at the discretion of the court pursuant to Rule 14‑1 of the Supreme Court Civil Rules. There is a very significant accompanying body of caselaw on the issue of costs. [88] The plaintiff, represented by the PGT as his litigation guardian, seeks certain cost orders as specifically articulated at para. 52 of these reasons for judgment. Without intending to suggest that the orders sought are inappropriate given the outcome of the Action in which the plaintiff was substantially successful in obtaining the relief sought, I am concerned that the defendants did not necessarily have the opportunity to make fulsome submissions on the issue of costs during closing argument as the focus of Ms. Meikle was, understandably, on the merits of the WESA claims being advanced on Gerry's behalf. [89] In the circumstances, I conclude that, to ensure there is procedural fairness, there should be an opportunity for the parties to make brief written submissions on the issue of costs. [90] Accordingly, unless the parties otherwise agree in writing, the schedule for the delivery of written submissions shall be as follows: a) The plaintiff shall have 14 days from the release date of these reasons to provide written submissions, not to exceed six pages, addressing costs; b) The defendants shall have 28 days from the release date of these reasons to provide written submissions, not to exceed six pages, addressing costs; c) If the parties agree upon a different timetable for the exchange of submissions, counsel must simply advise Supreme Court Scheduling of the revised schedule prior to the 28‑day deadline for responding submissions; and d) If, after review of the written submissions, I conclude that a one‑hour oral hearing is necessary, Supreme Court Scheduling will arrange a mutually agreeable date. Otherwise, I shall deliver written reasons for judgment. [4] Written submissions on behalf of the plaintiff, with an attached brief of authorities, were filed with the court on March 18, 2026 in accordance with my final order. This was well within the 14 days provided in the Trial Reasons. [5] The defendants did not file written submissions within the 28 days provided for in the Trial Reasons. Nor did I receive, through Supreme Court Scheduling, notice of any revised schedule or any request for an extension of the time to file written submissions. [6] Accordingly, upon having reviewed the written submissions received on behalf of the plaintiff, I have concluded that I can adjudicate upon costs without the need for a further oral hearing. The Plaintiff's Position [7] As set forth in the written submissions filed March 18, 20026, the plaintiff has not wavered from the initial position advanced, as articulated in the Trial Reasons at paras. 52(a)(ii)(b) and (c), that: (b) the plaintiff is entitled to his costs on scale B, payable by the defendants in their personal capacity. (c) The balance of the plaintiff's reasonable legal costs in relation to the Action be paid out of the capital of the estate on a full indemnity basis. [8] The plaintiff does, however, bring to the court's attention that on October 24, 2023, more than two years before the trial commenced, the plaintiff made a written offer to settle pursuant to R. 9‑1 of the Supreme Court Civil Rules [Rules] on the following terms (the "Formal Offer"): My client is prepared to settle this claim on the following terms subject to court approval: 1. Our client will receive 80% of the residue of the estate, 2. Your clients will receive 20% of the residue of the estate, 3. The reasonable legal costs for this action will be paid out of the estate on a full indemnity basis. 4. Our client's share will be paid directly to our client and will not be subject to a testamentary trust. The PGT will manage the affairs of our client, as committee of estate. On the foregoing terms, your clients' will receive approximately $90,000 based upon the estate value disclosed in the probate materials. This is more than sufficient compensation for their alleged contributions. The Plaintiff, Gerald David Wols, reserves the right to bring this offer to the attention of the Court for consideration in relation to costs after the Court has pronounced Judgment on all other issues in these proceedings. The Defendants' Position [9] Although I did not receive written submissions from the defendants, I shall acknowledge that their position at trial in opposing the relief sought by the plaintiff in the Action was that they should be entitled to their costs of the Action: see para. 53 of the Trial Reasons. Costs Generally [10] As previously noted in the Trial Reasons, costs are awardable under the Rules at the discretion of the presider. The general rule is that the party that is substantially successful should receive their costs unless the court otherwise orders: see R. 14‑1(9) of the Rules. [11] In Tisalona v. Easton, 2017 BCCA 272, the Court of Appeal described the law regarding costs as follows: [74] Rule 14‑1(9) grants unqualified discretion to depart from the prima facie rule that the successful litigant should be awarded its costs. [12] The court's discretion to "order otherwise" must be exercised judicially not arbitrarily or capriciously, bearing in mind a non-exhaustive list of factors that includes hardship, earning capacity, the purpose of the particular award, the conduct of the parties in relation to the litigation, and the importance of not upsetting the balance achieved by the court in relation to the substantive issues: see Gold v. Gold (1993), 1993 CanLII 1248, 106 D.L.R. (4th) 452 (B.C.C.A.) and Brito (Guardian ad litem of) v. Woolley, 2007 BCCA 1. Costs in Estate Litigation [13] The approach to costs in British Columbia estate litigation follows the modem statement of principles set out in Jung v. HSBC Trust Company (Canada), 2007 BCSC 1740, at para.106, as follows: 1. The costs of and incidental to a proceeding will follow the event unless the court otherwise orders. 2. If the cause of the litigation originated from the conduct or errors of the testator (i.e., unclear wording or validity of the will), then the costs of all parties will generally be paid from the estate on a full indemnity basis. 3. If there were circumstances which provided reasonable and sufficient grounds to have brought the action relating to questions of capacity or allege undue influence or fraud, the court will not normally make an order for costs against the unsuccessful party. 4. In an action under dependent relief legislation (i.e., where the proceedings are adversarial in nature and are not brought about by the actions of the testator), costs follow the event. 5. All costs awards are subject to the court's discretion and an overriding test of reasonableness. [14] In Holmes v. Holmes, 2024 BCSC 510, Justice K. Loo made an award for "blended costs" in estate litigation: see para. 58. According to this type of order, the successful party receives tariff costs from the unsuccessful party and additionally, the successful party recovers the balance of their reasonable costs from the estate. This form of order was developed to suit litigation that can fairly be characterized as an adversarial dispute between the plaintiff and the defendant as is usually the case in wills variation disputes, as contrasted with disputes over the interpretation or the validity of a will caused by the actions of the testator. Analysis [15] As set out above, the usual rule in "wills variation cases" is that the successful party is entitled to costs from the unsuccessful party: see Todd v. Walker, 2009 BCSC 537 at para. 5 and Doucette v. Clarke, 2008 BCSC 506 at paras. 8‑11; reversed in part, 2009 BCCA 393. [16] As I already stated in the Trial Reasons, the plaintiff was substantially successful at trial. The Will was varied in the plaintiff's favour. Further, the defendants advanced no alternate position for the purposes of trial. It was their position throughout that the Will should not be varied. [17] Where the personal representative is also a beneficiary, their expenses for opposing the plaintiffs claim must be borne personally, and not by the estate: see Chan v. Lee, 2003 BCSC 513 at para. 8. [18] The defendants here opposed the plaintiff's claims in their capacity as beneficiaries of the Estate and not as executors. In their capacity as executors, they were bound to take a neutral or unbiased position in the litigation. [19] As noted at para. 52 of the Trial Reasons, it is blended order made in Holmes that is being sought on behalf of the plaintiff herein. Specifically, the plaintiff seeks a blended order for his tariff costs from the defendants personally, and to be indemnified by the estate for the remainder of his reasonable legal expenses incurred in relation to his claim. [20] Subject to my below comments, I consider the plaintiff's position on costs to be appropriate having regard to all the circumstances. Offer to Settle [21] In light of the written submissions received on behalf of the plaintiff, I shall briefly address the Formal Offer. [22] Pursuant to R. 9‑1(5) of the Rules, in a proceeding in which an offer to settle has been made, the court may do one or more of the following: a) deprive a party of any or all of the costs, including any or all of the disbursements, to which the party would otherwise be entitled in respect of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle; b) award double costs of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle; c) award to a party, in respect of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle, costs to which the party would have been entitled had the offer not been made; and d) if the offer was made by a defendant and the judgment awarded to the plaintiff was no greater than the amount of the offer to settle, award to the defendant the defendant's costs in respect of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle. [23] Rule 9‑1(6) then sets out the considerations that the court may consider in such circumstances: (a) whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settle was delivered or served or on any later date; (b) the relationship between the terms of settlement offered and the final judgment of the court; (c) the relative financial circumstances of the parties; (d) any other factor the court considers appropriate. [24] As stated by the Court of Appeal in Hartshorne v. Hartshorne, 2011 BCCA 29 at para. 27: The first factor - whether the offer to settle was one that ought reasonably to have been accepted - is not determined by reference to the award that was ultimately made. Rather, in considering that factor, the court must determine whether, at the time that the offer was open for acceptance, it would have been reasonable for it to have been accepted: Bailey v. Jang, 2008 BCSC 1372, 90 B.C.L.R. (4th) 125 at para. 24; A.E. v. D.W.J. at para. 55. As was said in A.E. v. D.W.J., "The reasonableness of the plaintiff's decision not to accept the offer to settle must be assessed without reference to the court's decision" (para. 55). Instead, the reasonableness is to be assessed by considering such factors as the timing of the offer, whether it had some relationship to the claim (as opposed to simply being a "nuisance offer"), whether it could be easily evaluated, and whether some rationale for the offer was provided. We do not intend this to be a comprehensive list, nor do we suggest that each of these factors will necessarily be relevant in a given case. [25] In Augla v. Kaila, 2011 BCSC 466, the same principle was applied by Mr. Justice Harris (as he was then) in a civil proceeding: see para. 7. [26] Even though the Formal Offer is effectively identical to the orders I made after trial, the plaintiff does not seek an order for double costs. Rather, the plaintiff submits that the blended order for costs will strike an appropriate balance between an order for double costs and the usual order for costs at Scale B. [27] I fully accept the plaintiff's position in this regard. Conclusion [28] In conclusion, I am satisfied that the appropriate exercise of my discretion pursuant to the Rules, is to make the costs order sought by the plaintiff. Specifically, I order that: a) The plaintiff is entitled to his costs pursuant to the tariff on scale B, payable by the defendants in their personal capacity; and b) The balance of the plaintiff's reasonable legal costs in relation to the Action be paid out of the capital of the estate on a full indemnity basis. "Hardwick J."