McEwan v. McEwan

McEwan v. McEwan

The plaintiff was the successful party and entitled to costs on Scale B; apportionment was inappropriate because the issues were not discretely separable; the defendants' offer to settle was revoked without notice and, even when considered, was not one the plaintiff ought reasonably to have accepted because payment...

Source-derived case information.

Citation
2014 BCSC 1325
Parties
Plaintiff: Malcolm McEwan; Defendant and Executrix of the Estate: Karlynne Tracy McEwan; Defendant and Executrix of the Estate: Shannon Dennette McEwan-O'Neal (described in the will as Dennette Shannon McEwan)
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
16 July 2014
Procedural Posture
Wills Variation / Estate Litigation / Post‑trial Costs Determination (supplemental Reasons on Costs)
Outcome
Plaintiff awarded costs; costs to be paid personally by the defendants and not from the estate.
Legal Topics
Wills Variation Act, Offers to Settle, Apportionment of Costs, Personal Liability for Costs
Source Language
english
Wills and Estates Civil Procedure Costs Wills Variation Act Offers to Settle Apportionment of Costs Personal Liability for Costs

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Parties

Malcolm McEwan

Plaintiff

Karlynne Tracy McEwan

Defendant and Executrix of the Estate

Shannon Dennette McEwan-O'Neal (described in the will as Dennette Shannon McEwan)

Defendant and Executrix of the Estate

Procedural Posture

Wills Variation / Estate Litigation / Post‑trial Costs Determination (supplemental Reasons on Costs)

Legal Issues

  1. 1 Whether the plaintiff is entitled to costs as the successful party
  2. 2 Whether an offer to settle should affect the costs order
  3. 3 Whether costs should be paid out of the estate or by the defendants personally

Ratio Decidendi

The plaintiff was the successful party and entitled to costs on Scale B; apportionment was inappropriate because the issues were not discretely separable; the defendants' offer to settle was revoked without notice and, even when considered, was not one the plaintiff ought reasonably to have accepted because payment timing and release terms lacked certainty; costs must be paid personally by the defendants and not out of the estate.

Court Disposition

Plaintiff awarded costs; costs to be paid personally by the defendants and not from the estate.

Orders

  • Plaintiff awarded costs on Scale B
  • Costs payable personally by Karlynne Tracy McEwan and Shannon Dennette McEwan-O'Neal