Wicklund v. Denis and Yvonne Blakely 2015 Joint Partner Trust

2025 BCSC 2531 Wicklund v. Denis and Yvonne Blakely 2015 Joint Partner Trust

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Wicklund v. Denis and Yvonne Blakely 2015 Joint Partner Trust, 2025 BCSC 2531 Date: 20251222 Docket: S242066 Registry: Vancouver Between: Cindi Gail Wicklund, Evan Derek Wicklund and Kirsten Cara Wicklund Plaintiffs And Kevin Blakely and Victoria McCarvill, in their capacity as Trustees of the Denis and Yvonne Blakely 2015 Joint Partner Trust, Kevin Blakely and Victoria McCarvill in their personal capacities, and the Denis and Yvonne Blakely 2015 Joint Partner Trust Defendants Before: The Honourable Justice Douglas Reasons for Judgment Re Costs Counsel for the Plaintiffs: D.P. Dahlgren Counsel for the Defendants, Kevin Blakely and Victoria McCarvill, in their capacity as Trustees of the Denis and Yvonne Blakely 2015 Joint Partner Trust: M.C. Ohama-Darcus C. Harris No other appearances Written Submissions of the Defendants, Kevin Blakely and Victoria McCarvill, in their capacity as Trustees of the Denis and Yvonne Blakely 2015 Joint Partner Trust: October 29, 2025 Written Submissions of the Plaintiffs: November 6, 2025 Place and Date of Judgment: Vancouver, B.C. December 22, 2025 Table of Contents I. OVERVIEW.. 3 II. legal framework.. 4 A. Costs in Civil Litigation Generally. 4 B. The Modern Approach to Costs in Estate Litigation. 4 III. analysis and conclusions. 6 I. OVERVIEW [1] The trustees seek an order for costs following

dismissal of the plaintiffs' claims pursuant to reasons for judgment indexed as 2025 BCSC 1894 ("Reasons"). At issue on these summary trials was the validity and enforceability of an amended trust agreement, originally settled on July 28, 2015, and purportedly amended on October 19, 2015, less than three months later. [2] The plaintiffs commenced this action on March 27, 2024, seeking to set aside the trust amendment on the grounds that it was invalid, void, and unenforceable, and to restore the original trust agreement, the validity of which was not in dispute. They alleged that suspicious circumstances were present in October 2015, that settlor, Yvonne Blakely, lacked the mental capacity to amend the trust, and that she was subjected to undue influence by her husband, Denis Blakely, in doing so. [3] For clarity and convenience, I once again refer to the parties, many of whom share a surname, by their first names. In doing so, I intend no disrespect. [4] The plaintiffs did not challenge Yvonne's capacity to settle the trust on July 28, 2015, nor her capacity to understand its nature and effect. They did not challenge the validity of the enduring power of attorney that Yvonne signed the same day, nor her capacity to execute it. They did not dispute the validity or enforceability of the last will and testament and the representation agreement that Yvonne signed on September 2,

2015, nor her capacity to do so. [5] I found that Yvonne had the capacity to amend the trust on October 19, 2015, that she did so with knowledge and approval of its nature and effect, and that the evidence did not support findings that suspicious circumstances were present or that Yvonne was unduly influenced by Denis when she made the trust amendment. The plaintiffs' claims were therefore dismissed in their entirety. [6] I invited the parties to file written submissions regarding costs if they were unable to reach an agreement on that matter (Reasons, para. 252). Counsel for the trustees filed their written submissions on October 29, 2025; plaintiffs' counsel did so on November 6, 2025. [7] The trustees say that, given their complete success on these summary trials and the modern approach to costs in estate litigation, there is no proper basis to depart from the usual approach to costs pursuant to Rule 14-1 of the Supreme Court Civil Rules [SCCR]. They seek costs in their favour and submit that the plaintiffs ought to bear their own costs. [8] The plaintiffs seek an order that the trustees pay them taxable costs of this action at Scale B from the trust funds. Alternatively, they seek an order that they not be required to pay costs to the trustees or, in the further alternative that, if they are required to pay costs of this action, those costs be paid as taxable costs at Scale

B. [9] For the reasons which follow, I award the trustees their costs of this action on the ordinary scale. I award no costs to the unsuccessful plaintiffs. II. legal framework A. Costs in Civil Litigation Generally [10] Rule 14-1(9) of the SCCR provides: Costs to follow event (9) Subject to subrule (12), costs of a proceeding must be awarded to the successful party unless the court otherwise orders. [11] A successful party is a plaintiff who establishes liability and obtains a remedy, or a defendant who obtains a dismissal of the plaintiff's claim: Loft v. Nat, 2014 BCCA 108 at para.

46. There must be a reason to depart from the usual cost rules in civil litigation; discretionary exceptions must be made judicially: Loft at para. 49; Leung v. Chang, 2014 BCSC 1243 at para.

32. B. The Modern Approach to Costs in Estate Litigation [12] Traditionally, Canadian courts of first instance have followed the approach of the English courts in estate litigation and the principle that all parties' costs are ordered payable out of the estate if the dispute arose from an ambiguity or omission in the testator's will or other conduct of the testator, or there were reasonable grounds upon which to question the will's validity: Hollander v. Mooney, 2017 BCCA 238 at para. 39, citing McDougald Estate v. Gooderham, 2005 CanLll 21091 (O.N.C.A.) at para. 79. [13] The traditional approach to costs in estate litigation has been displaced: McDougald Estate at para.

80. The "modern approach" is to apply the default rule for costs absent exceptional circumstances. This approach recognizes the need to restrict unwarranted litigation and to protect estates from being depleted by litigation: Hollander at paras. 39-40; Sato v. Sato, 2018 BCCA 287 at para. 56. [14] The modern approach to fixing costs in estate litigation is to scrutinize the litigation and, unless the court finds that one or more of the specified public policy considerations applies, to follow the usual costs rules that apply in civil litigation: McDougald Estate at para.

80. Gone are the days when the costs of all parties are so routinely ordered payable out of the estate that people perceive there is nothing to be lost in pursuing estate litigation: McDougald Estate at para. 85. [15] Under the modern approach, there are only limited exceptional circumstances where a court may order that an estate bear its own costs of civil litigation and/or pay the costs of an unsuccessful plaintiff, namely, where the difficulties or ambiguities that give rise to the litigation were caused, in whole or in part, by the testator, or where there were reasonable grounds upon which to question the execution of the will or the testator's capacity in making the will: Hollander at para. 39; Re: Peckover Estate, 2025 BCSC 1240 at para.

24. When a plaintiff fails to establish the existence of suspicious circumstances, the court may find no reasonable grounds to question the execution of a will or the capacity of a testator: Wilton v. Koestlmaier, 2019 BCCA 262 [Wilton BCCA] at paras. 73. [16] As noted in Hadley Estate (Re), 2017 BCCA 311, the central question when deciding costs is whether the contested issue arose from the deceased's conduct: [47] In estate litigation, courts commonly award special costs payable out of the estate to all parties. This practice is based on the principle that where an estate issue must be litigated to remove any doubts, all interested parties must be joined and all are entitled to be heard. In such circumstances, they should not be out of pocket if, in the result, the litigation does not conclude in their favour. The central question as to costs is whether the contested issue arises from the conduct of the deceased or the conduct of another. In the case of the former, an award of special costs from the estate will usually be made: Milwarde-Yates v. Sipila, 2009 BCSC 277 at paras. 81-82. [17] An action relating to the validity of a will is properly characterized as an adversarial dispute among the affected parties and the usual rule that costs follow the event will apply, unless there were reasonable grounds to question a testator's capacity, such as when there are "highly 'suspicious circumstances'" surrounding the preparation of the will: Nassim v. Healey, 2022 BCSC 728 at paras. 17-18; Leung at para. 36, cited with approval in Wilton BCCA at para.

75. III. analysis and conclusions [18] As noted, the modern approach to estate litigation is to apply the usual costs rules for civil disputes: Wilton BCCA at para. 67, citing Sato at para.

56. However, in limited circumstances, costs may be awarded out of the estate where the executor has been the cause of the action, such as where it is necessary to construe an ambiguous provision in a will, or there were reasonable grounds to question a testator's capacity at the time the will was made: Wilton BCCA at para. 68, citing Stanton v. Stanton Estate, 2008 BCCA 362 at para. 11. [19] Justice Butler, speaking for a unanimous court in Wilton BCCA, concluded that the trial judge did not err in principle by exercising her discretion to apply the normal costs rule and award costs against the appellants: para.

71. He noted the absence of any suggestion that the deceased had caused the dispute by creating an ambiguous testamentary document. Those comments are analogous here; the trust amendment was not inherently ambiguous. [20] In Wilton BCCA, the appellants argued that there were reasonable grounds on which to question the execution of the codicil and the deceased's capacity: para.

72. As noted by Butler J.A. in Wilton BCCA, the difficulty with the appellants' position was that the trial judge rejected the appellants' evidence and thus the premise behind their claim: para.

73. In my view, the plaintiffs here face the same difficulty. [21] The plaintiffs and the trustees presented dramatically different versions of Denis, Yvonne, Yvonne's capacity, and Yvonne's relationship with Denis. The plaintiffs deposed that Yvonne's mental and physical condition worsened significantly between August 2015 and January 2016 (Reasons, paras. 132-149). By contrast, the trustees gave evidence that Yvonne was a strong-willed, independent-minded woman who had the capacity to know what she wanted and to make her own decisions (Reasons, paras. 150-155). [22] I found the plaintiffs' evidence contained many sweeping, uncorroborated assertions, some of which overstated the evidence in their favour (Reasons, paras. 133, 136). I found the general picture the plaintiffs painted of Yvonne's declining physical and cognitive status in the "fall of 2015" was not consistently reliable, and that the overall sameness, quality, and tenor of their evidence detracted from its persuasiveness (Reasons, paras. 142, 149). [23] To the extent that there were conflicts, I generally preferred the evidence of the trustees, who did not have the same interest in the outcome of this proceeding as the plaintiffs, and whose evidence was, in comparison to that of the plaintiffs, more precise, nuanced, and more consistently corroborated (Reasons, paras. 150-151). [24] Justice Butler noted in Wilton

BCCA at para. 73 that "it is not possible to say that there were reasonable grounds to question the execution of the Codicil and Maxine's capacity". In my view, those comments are equally applicable here. [25] The trustees deny there are any exceptional public policy considerations in this case to warrant departing from the usual approach to costs in civil litigation for three principal reasons: a) This is not a case which involved the construction of an ambiguous provision in the trust amendment, which was clear on its face; b) In seeking to set aside the trust amendment, the plaintiffs advanced (but failed to establish) multiple allegations of "suspicious circumstances" in an apparent attempt to shift the onus of proof for capacity to the trustees; and c) The plaintiffs' claim was fundamentally adversarial in nature, and the trust amendment did not force the parties into litigation. [26] In the result, the trustees submit that costs ought to follow the event. [27] I conclude that, unlike Hadley Estate, this case did not have to be litigated. The trust amendment contained no inherent ambiguity. Rather, the plaintiffs chose to pursue this litigation, as they were entitled to do, in the hope of benefiting financially if they succeeded in setting aside the trust amendment. However, doing so was not without risk, including the risk of costs if their claim failed. [28] The plaintiffs submit that if there were reasonable grounds to question Yvonne's execution of the trust amendment or her capacity to amend the trust agreement, it is in the public interest that such questions be resolved without cost to those questioning the trust's validity: Wilton BCCA at para. 68, citing McDougald Estate at para.

78. The difficulty with this argument is that it is premised on findings of fact I did not make. [29] In my view, the facts in Wilton BCCA are parallel to those in the case at bar. As noted by Butler J.A. in Wilton BCCA at para. 13, the trial judge upheld the validity of the disputed codicil and made the following findings: a) There were no suspicious circumstances surrounding the making of the codicil; b) The deceased was a strong-willed, independent woman who made her own decisions and she knew and approved the contents of the codicil and had the requisite testamentary capacity to execute it, which she did of her own free volition; c) The appellants' evidence was unreliable and self-serving in comparison to the executors' evidence and, to the extent there were conflicts in the evidence, the trial judge preferred the executors' evidence; and d) The medical expert's evidence, which was based solely on a review of records and not on any personal knowledge of or interaction with the deceased, was given no weight. [30] I made comparable findings in this case: a) The evidence did not establish that suspicious circumstances surrounded the making of the trust amendment (Reasons, paras. 165, 171, 178, 188, 193, 206, 214). b) Denis and Yvonne had a mutually loving and supportive relationship which was not characterized by undue influence and the trust amendment was not the product of

undue influence by Denis (Reasons, paras. 247, 250). c) Yvonne had a mind of her own, was committed to amending the trust, and persisted in her decision to do so, despite Denis' expressed concerns about the consequences (Reasons, para. 246). d) The plaintiffs' affidavits contained many sweeping, uncorroborated assertions, the evidence of Kirsten and Evan largely mirrored that of their mother, Cindi, and some of the plaintiffs' broad assertions overstated the evidence in their favour (Reasons, paras. 133, 136, 186). e) There were some notable inconsistencies between Cindi's evidence and the medical records of Yvonne's treating physicians and, to the extent there were conflicts in the evidence, I generally preferred the contemporaneous medical records which I concluded were a more detailed, objective, and reliable source of information (Reasons, para. 136). f) The general picture the plaintiffs painted of Yvonne's declining physical and cognitive status in the "fall of 2015" was not consistently reliable and the overall sameness, quality, and tenor of their evidence detracted from its persuasiveness (Reasons, paras. 142, 149). g) By contrast, the evidence of the trustees was more precise, nuanced, and more consistently corroborated and Denis' children, Kevin, Victoria, and Roberta Al Houosani, did not have the same interest as the plaintiffs in the outcome of these proceedings

(Reasons, paras. 150-151). h) I found the contemporaneous clinical notes and records of Yvonne's treating healthcare providers, the authenticity of which was not disputed, comprised the most probative evidence regarding Yvonne's physical and mental status in October 2015 (Reasons, para. 90). A careful review of those records demonstrated no material decline in Yvonne's functional cognitive status between July 28, 2015 (when she signed the undisputed trust), September 2, 2015 (when she signed her unchallenged last will and testament and representation agreement), and October 19, 2015 (the date of the disputed trust amendment) (Reasons, para. 91). i) Taken as a whole, the evidence did not support the conclusion that Yvonne's cognitive status changed materially between July 28, 2015 and October 19, 2015 (Reasons, para. 156). j) The plaintiffs overstated the importance of a two-point decline in Yvonne's Mini-Mental State Examination ("MMSE") to the assessment of her mental capacity in 2015, a change the medical experts did not describe as significant (Reasons, para. 124). k) Both medical experts acknowledged the limitations of the MMSE screening test when considered in isolation and recognized the importance of assessing a person's functional status in determining whether their dementia has progressed (Reasons, para. 124). l) Neither expert had an opportunity to assess Yvonne's

clinical or functional status, and their opinions were of limited assistance in determining Yvonne's mental capacity in October 2015 (Reasons, para. 125). [31] The trial judge in Wilton v. Koestlmaier, 2018 BCSC 1257 [Wilton BCSC] awarded costs of the action to the executors against the appellants, a decision that was upheld on appeal. Justice Butler noted that the trial judge did not consider the issues which gave rise to the action to have been caused by the deceased: Wilton BCCA at para.

76. Accordingly, he concluded that it was within the trial judge's discretion to award costs against the appellants under the modern approach to costs in estate litigation: Wilton BCCA at para. 76. [32] As noted, I made findings here that were comparable to those of the trial judge in Wilton BCSC. In my view, the same result logically follows. To hold otherwise would, as Justice Brongers found in Nassim at para. 24, citing McDougald Estate at para. 85, be inconsistent with the principle that estate litigation should not perpetuate the assumption that potential beneficiaries have nothing to lose by pursuing such proceedings. I conclude that this was fundamentally an adversarial proceeding, brought by plaintiffs with a financial interest in the outcome. [33] The plaintiffs rely on Baylis Estate, 2025 BCSC 959. If the cause of the litigation originated from the conduct or errors of the testator, the costs of all parties will generally be paid from the estate on a full indemnity basis; 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: Baylis Estate at para. 8. [34] The plaintiffs argue that an award of costs in their favour is justified under both the traditional and the modern

approach because this dispute was caused, in whole or in part, by the acts or omissions of Yvonne, Denis, and Kevin. They submit that three key exceptions to the modern approach to costs in estate litigation, as set out in Baylis Estate and Sato, are present here: a) If the cause of the litigation originated from the conduct or errors of the testator (i.e., unclear wording or validity of the will), the costs of all parties will generally be paid from the estate on a full indemnity basis; b) If there were circumstances which provided reasonable and sufficient grounds to bring the action (relating to questions of capacity or alleged undue influence or fraud), the court will not normally order costs against the unsuccessful party; and c) The difficulties or ambiguities that gave rise to the litigation were caused, in whole or in part, by the testator. [35] The plaintiffs submit that this litigation might have been avoided if: a) Yvonne and Denis had used their previous estates lawyer to draft the trust amendment, especially as Yvonne had dementia and was making a significant change to her estate planning in a very short period of time; b) Yvonne's signature on the trust amendment had been witnessed; c) Kevin had not been involved in the drafting and execution of the trust amendment; d) Yvonne's mental capacity had been reassessed in October of 2015; and e) Yvonne had told Cindi

about her wishes and the existence of the trust amendment. [36] Notably, I found Denis and Yvonne could have amended the trust at any time without the involvement of a lawyer, and that the trust agreement did not require that any changes to it be witnessed (Reasons, paras. 176-177). I also found nothing suspicious in Yvonne's decision not to disclose the trust amendment to Cindi and that the evidence did not support Cindi's assertion that she and Yvonne kept no secrets from each other (Reasons, para. 208). [37] The plaintiffs rely on a statement in the Reasons that the parties might have avoided this dispute if things had transpired differently as support for their decision to proceed with this litigation (Reasons, para. 188). This statement must be read in the context of the Reasons as a whole. While the plaintiffs would have been unable to assert a conflict of interest if Denis and Yvonne had not approached Kevin to help them draft the trust amendment, I expressly found it would be illogical to conclude that suspicious circumstances arose because Kevin agreed to draft a document that Denis and Yvonne could have prepared themselves. [38] The plaintiffs say they held a reasonable belief that there were suspicious circumstances surrounding the preparation and execution of the trust amendment and serious issues with Yvonne's mental capacity and ability to understand and approve

it. The difficulty with this submission is that it does not mesh with my findings of fact. I expressly found that the stated beliefs of the plaintiffs regarding Yvonne's mental capacity at the material time were unsupported by more objective evidence. While I accepted that the plaintiffs' beliefs regarding Yvonne's wishes were genuinely held, I do not agree that they were required to litigate this claim. [39] The plaintiffs also rely on Chippett v. Seguin, 2024 BCSC 1651, where Justice Baker declined to order the unsuccessful party in an estate action to pay costs despite finding the respondent's challenge to the validity of the will were unfounded. As plaintiffs' counsel acknowledges, the facts in Chippett are distinguishable from those in the case before me. Costs awards are discretionary and context specific. As noted, I conclude that the facts in this case closely parallel those in Wilton BCSC. In my view, the same result must follow here. [40] Where an unsuccessful party has advanced but failed to prove undue influence, ordinarily costs for the whole action will be assessed against that party: Leung at para. 35, citing Stanton at para.

11. I conclude that there is no reason to depart from the usual order that costs follow the event. In the result, the trustees are entitled to their costs of this action on the ordinary scale. I decline to fix costs. If the parties are unable to agree on this matter, it is open to the trustees to have costs assessed by the Registrar of the Court. "Douglas J."