Sunday, May 27, 2007

Unfounded Allegations of Undue Influence Can Be Costly

In McLean v. Gonzalez-Calvo, 2007 BCSC 648, Madam Justice MacKenzie ordered William Cameron McLean to pay Eliana Gonzalez-Calvo special costs.

James Stitt died without a spouse or children. In his will, he left most of his estate to his friend Eliana Gonzalez-Calvo, with smaller gifts to her children, and to a neighbour, Eileen Hemmings.

Mr. McLean, with encouragement from Ms. Hemmings, challenged the will. As one of Mr. Stitt's cousins, he would inherit a share of the estate if the will were invalid. He argued that Mr. Stitt did not have testamentary capacity to make a will. He also alleged that Ms. Eliana Gonzalez-Calvo unduly influenced Mr. Stitt into making the will he did.

After a seven day trial, Madam Justice MacKenzie found that the will was valid. The court found on the basis of the evidence of the lawyer who drew the will, and of two doctors, that Mr. Stitt had capacity to make the will. She found no evidence of undue influence. The decision is at 2007 BCSC 646.

The usual rule in British Columbia is that the losing party in a court case pays court costs to the winner. Usually, these court costs represent a small portion of the winner's actual legal expenses. But, the court may award "special costs" in some cases. An award of special costs will usually compensate the successful party for his or her full, or close to full, actual legal expenses.

In this case, Madam Justice MacKenzie awarded special costs for two reasons. The claim of undue influence is a serious allegation to make. She found that there was no basis for it. Secondly, given the strength of the evidence, Mr. McLean's case was bound to fail. He should have abandoned the case before trial.

The reported decision does not say how much the special costs are. But, the Court does quote a letter from Ms. Gonzalez-Calvo's lawyer to Mr. McLean's lawyer warning that the costs after a trial would be in the $80,000 to $100,000.

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