Executive Summary: Key Legal and Evidentiary Issues

• Validity of a holograph codicil leaving a $23 million “Home Farm” solely to one child in the face of suspicious circumstances, capacity concerns, and procurement by that beneficiary
• Application of modern estate litigation costs principles, including when parties’ costs may be paid out of the estate versus personally by a losing litigant
• Characterization of approximately $4 million in investment accounts as assets held in trust for the estate rather than beneficially owned by the daughter
• Scrutiny of a beneficiary’s role in procuring a testamentary document and its impact on knowledge and approval and testamentary capacity findings
• Assessment of the proportionality and reasonableness of multi-million-dollar costs claims in complex estate litigation with extensive evidence, experts, and pre-trial steps
• Effect of formal offers to settle under Rule 49 on the scale of costs (partial vs substantial indemnity) across multiple related estate applications

Background and family estate context

The litigation arose from the estate of Elma Schickedanz, a wealthy testator whose assets included a high-value rural property often referred to as the “Home Farm,” estimated at around $23 million, and investment accounts worth approximately $4 million. Elma had several children: her sons Waldemar Schickedanz, Gerhard H. Schickedanz, Manfred Schickedanz and Arthur Schickedanz (collectively, the Brothers), and her daughter, Charlotte Schickedanz. The family dynamic and succession expectations were central to the dispute, particularly allegations that Charlotte’s father had indicated she should receive the Home Farm and that Elma later signed documents purporting to implement those wishes. Against this backdrop, the court was asked to determine which testamentary and financial arrangements would ultimately govern the distribution of significant estate assets after Elma’s death.

The will, the purported codicil, and the home farm

Elma left a formal will dealing with her property, but a subsequent handwritten and signed document, advanced as a holograph codicil, became the focal point of the first application (the Codicil Application). Under this purported codicil, Elma’s home—referred to as the Home Farm and valued at about $23 million—was left to Charlotte alone, altering the scheme under the original will. Charlotte applied for a declaration that this document was a valid testamentary codicil. She argued that the administration of the estate required a judicial determination of its validity and sought to analogize her position to that of an estate trustee needing the court’s guidance to ensure proper administration. In support of her position, she pointed to several factors: her father’s expressed wish that she receive the Home Farm; Elma’s handwritten and signed document purporting to dispose of that property; Elma’s acknowledgment of that document to some of the respondents; and a later, 2016 written codicil (not probated) that appeared to attempt to clarify her wishes. These circumstances, Charlotte contended, justified litigating the codicil’s validity and supported the view that any resulting legal costs should be borne by the estate.

Suspicious circumstances, capacity, and knowledge and approval

The Brothers resisted the Codicil Application, challenging the validity of the purported codicil on multiple grounds. At trial, the court ultimately found the codicil invalid based on suspicious circumstances, lack of knowledge and approval, and lack of testamentary capacity on the part of Elma at the time the document was made. The evidentiary record showed that the codicil conferred a singular benefit on Charlotte: the Home Farm was left solely to her. The court also found that Charlotte played an instrumental role in procuring the codicil, that it was procured in secrecy without the involvement of anyone other than Elma, Charlotte, and a notary public who witnessed Elma’s signature, and that Charlotte had previously contacted a lawyer one or two years earlier to ask that a codicil be prepared leaving the Home Farm to her—though she professed no recollection of that communication at trial. These findings led the court to conclude that the codicil did not meet the requirements of a valid testamentary instrument. The presence of suspicious circumstances, coupled with concerns about Elma’s mental decline, undermined both testamentary capacity and the presumption that Elma knew and approved of the document’s contents. As a result, the purported holograph codicil was rejected, and the terms of the original will—rather than the later handwritten document—continued to govern the disposition of the Home Farm.

The investment accounts and trust characterization

Parallel to the dispute over the codicil, the Brothers brought an Investment Account Application dealing with certain investment accounts in Elma’s name, valued at about $4 million. They sought a declaration that these accounts, although associated with Charlotte in various ways, were in fact held in trust for Elma’s estate rather than beneficially owned by Charlotte. After a full trial, the court granted the Brothers’ application. The investment accounts were declared to be held in trust for the estate, and the proceeds were ordered to fall back into the general pool of estate assets to be administered in accordance with the will. This determination had major financial implications, ensuring that millions of dollars would be available for distribution according to the testamentary scheme rather than passing to Charlotte personally. The trust characterization also aligned with the court’s broader view that Charlotte’s position, including with respect to the codicil, was inconsistent with her acting purely in the estate’s interests.

Charlotte’s management fee application and its withdrawal

In addition to defending against the Brothers’ applications, Charlotte herself commenced a counter or separate application seeking compensation for managing the same investment accounts (the Management Fee Application). This claim effectively sought remuneration for her role in overseeing and dealing with the accounts that the Brothers argued were estate assets. Before trial, however, on December 17, 2021, Charlotte withdrew or abandoned this Management Fee Application, leaving only the question of costs to be determined. Under the procedural rules, when an application is abandoned, the respondent is presumptively entitled to its costs unless the court orders otherwise. The court later found that there was no good reason to depart from this default rule and that the issues raised by the management fee claim did not engage any public policy exception that would justify having the estate pay for the resultant legal expenses.

General approach to costs in estate litigation

The later 2026 costs endorsement synthesised the outcome of the substantive trial decision with the modern principles governing costs in estate litigation. Citing appellate authority, the court reaffirmed that estate disputes are now subject to the ordinary civil “loser pays” regime, with estates no longer treated as automatic funding sources for all parties’ legal bills. Costs are to be determined with reference to rule 57.01 of the Rules of Civil Procedure and section 131 of the Courts of Justice Act, focusing on the result obtained, the amounts at stake, the complexity and importance of the issues, and the overall fairness and proportionality of any award. Exceptions that allow costs to be paid from the estate rather than by an unsuccessful litigant arise only in limited situations where public policy demands it—for example, where a proceeding is genuinely necessary to ascertain a testator’s intentions or where an estate trustee reasonably initiates litigation to secure proper administration of the estate. Even then, estate trustees can be denied indemnity where they act unreasonably or primarily in their own interests.

Application of public policy and denial of estate-funded costs to Charlotte

Charlotte asked that her substantial legal fees—over $900,000 in relation to the Codicil Application alone—be paid out of the estate rather than personally. She argued that the need to determine the codicil’s validity was created by the testator’s actions and that she was similarly situated to an estate trustee in seeking the court’s guidance. The court rejected this characterization. It held that Charlotte’s role in assisting Elma with the codicil, which solely benefited her and was procured despite Charlotte’s awareness of Elma’s mental decline, did not align with the public policy exceptions that sometimes justify estate-funded costs. To allow a beneficiary who had actively procured a suspect will or codicil to recover their costs from the estate would, in the court’s view, create a perverse incentive: such litigants would “have nothing to lose,” gaining the benefit of the will if successful and their costs from the estate if unsuccessful. Public policy, therefore, did not support shifting Charlotte’s costs to the estate. The court ordered that Charlotte bear her own costs of the Codicil Application and the Investment Account Application and likewise her own costs in relation to the withdrawn Management Fee Application.

Scrutiny of the Brothers’ costs and scale of indemnity

While the Brothers were clearly the successful parties on the merits, the court was still required to assess whether the multi-million-dollar costs they claimed were reasonable, fair, and proportionate. The litigation was complex and heavily contested: there were extensive document productions, expert evidence, over 20 pre-trial examinations, numerous motions and conferences, and an 11-day trial. The Brothers’ costs submissions initially sought over $2.6 million across the Codicil and Investment Account Applications, alternatively $2.3 million, or at a minimum nearly $2.0 million on a partial indemnity basis, plus about $17,700 relating to the Management Fee Application. Charlotte challenged both the quantum and the reasonableness of these figures, pointing to discrepancies between draft and final bills of costs, the very high hourly rates charged by the Brothers’ counsel compared with her own, and specific line items she considered excessive (including almost 100 hours spent on two particular affidavits). She also argued that the overall amount—her own total costs being in the range of $1.35 million—was far beyond her reasonable expectations and that any award should be calibrated to what a losing party could fairly be expected to pay, not simply to what the successful party chose to spend.

The court agreed that the assessment of costs is not a mechanical exercise and that costs must be determined with an eye to objective reasonableness and proportionality, rather than simply mirroring actual expenditure. Although it recognized that the Brothers’ costs could reasonably be higher than Charlotte’s given their larger number of witnesses, expert reports, and responsibility for compiling joint document books, it still regarded the total they spent—over $3.2 million—as beyond what Charlotte could have reasonably anticipated. The absence of a detailed explanation for the significant increase between draft and final cost estimates also weighed against the full recovery the Brothers sought. After undertaking a critical review, the court fixed a global amount it considered appropriate in light of the complexity of the proceeding, the degree of success, the offers to settle, and general costs jurisprudence.

Impact of offers to settle on the scale of costs

The Brothers had served two formal offers to settle under Rule 49, in January 2022 and January 2024, addressing all three applications. The offers included terms such as declaring the codicil invalid, returning the Home Farm to the estate under the will, options for Charlotte to purchase the property, and proposals dealing with the investment accounts, alleged withdrawals by Charlotte, registered account beneficiary designations, and the dismissal or costs consequences of the Management Fee Application. Charlotte made no counter-offers. The court carefully compared the offers with the eventual judgment. It concluded that, while it was not entirely clear whether the 2022 offer was more favourable than the final result on every component, the Brothers clearly achieved at least as favourable or more favourable terms than those offered in January 2024 on key issues, particularly in relation to the investment accounts. Applying Rule 49, the court found that the Brothers were presumptively entitled to partial indemnity costs up to January 24, 2024, and substantial indemnity costs thereafter for the Codicil and Investment Account Applications. The Management Fee Application, which Charlotte had withdrawn earlier, fell under a separate rule that presumptively grants the respondent its costs when an application is abandoned.

Final costs orders and overall outcome

In the result, the Brothers prevailed on the central substantive issues. The court held the purported holograph codicil invalid for suspicious circumstances, lack of knowledge and approval, and lack of testamentary capacity, meaning the Home Farm remained governed by the original will. The Brothers’ Investment Account Application succeeded, with the disputed investment accounts declared to be held in trust for Elma’s estate and not for Charlotte personally. Charlotte’s Management Fee Application for compensation was abandoned and attracted an adverse costs order. On the costs of the proceedings as a whole, the court rejected Charlotte’s request that the estate fund her legal expenses and instead applied the modern “loser pays” principle, subject to fine-tuning for proportionality and offers to settle. Ultimately, the court ordered Charlotte to pay the Brothers $2,200,000.00 in costs for the Codicil Application and the Investment Account Application (including adjournment-related motions) and an additional $17,768.69 for the costs of the Management Fee Application, for a total of $2,217,768.69. Should Charlotte fail to pay within 90 days, the order directs that these costs be satisfied from her share of the estate. Accordingly, the Brothers are the successful parties, and the total monetary amount ordered in their favour in the costs decision is $2,217,768.69.