BC Court of Appeal: Peckover v Wall BC Appeal Costs Upheld

• The British Columbia Court of Appeal dismissed an appeal concerning the rectification of a will where the testator had not reviewed the draft.
• The initial will rectification was ordered under section 59 of BC’s Wills, Estates and Succession Act due to a lawyer's error and the testator's declining health.
• The appellant, the testator's brother, sought special costs from the estate for the appeal, but the respondent, the testator's spouse, requested ordinary costs from the appellant.
• The Court of Appeal ordered the appellant to pay the respondent's ordinary costs, citing section 44 of the Court of Appeal Act and deeming the appeal unreasonable.
• The court emphasized that the legal test for rectification was settled and saw no reason to deplete the estate by covering appeal costs.

The court explicitly stated that it saw no necessity in depleting the estate's resources by requiring it to fund the appeal costs for either party.

The British Columbia Court of Appeal recently addressed the issue of costs following an unsuccessful `BC will rectification appeal` in the case of `Peckover v Wall, 2026 BCCA 350`. The underlying dispute involved a will that erroneously failed to reflect the testator's true intentions regarding a property bequest. The testator's surviving spouse, who was also the residuary beneficiary of the estate, initiated proceedings under section 59 of BC’s `Wills, Estates and Succession Act` (WESA) to rectify the will.

The respondent argued that the will, as drafted, did not accurately convey the testator's intent to leave only the surface rights of a specific property to her brother, the appellant in the subsequent appeal. This discrepancy arose because the testator's lawyer had not followed her instructions precisely. A key factor contributing to the litigation was the `testator didn't read will draft` provided by her solicitor, a situation exacerbated by her rapidly declining health in the period between giving instructions and her death. The appellant opposed the rectification petition, contending that the respondent had not met the legal criteria for rectification established in *Simpson v. Zaste, 2022 BCCA 208*.

Ultimately, a chambers judge of the Supreme Court of British Columbia sided with the respondent, ordering the rectification of the will. In a notable aspect of the initial ruling, the judge directed the estate to cover the respondent's costs, while also indemnifying the appellant for his expenses. This cost award acknowledged that the litigation's genesis lay partly in the testator's failure to review the draft will due to her health circumstances.

Dissatisfied with the rectification order, the testator's brother launched an appeal, asserting that the chambers judge had interpreted and applied the requirements of `WESA s. 59` too narrowly. However, on February 10, 2026, the `BC Court of Appeal` dismissed the appeal, upholding the original rectification order.

Following the dismissal, the question of appeal costs became central to the `Peckover v Wall BC appeal costs` decision. The appellant requested that the estate be ordered to pay special costs for all parties involved in the appeal, citing principles typically applied in `estate litigation special costs Canada`, the chambers judge's prior cost award, and the inherent nature of the dispute. Conversely, the respondent sought an order for the appellant to bear the ordinary costs of the appeal.

Considering the specific circumstances and relevant policy considerations, the British Columbia Court of Appeal ultimately ordered the appellant to pay the respondent the ordinary costs incurred during the appeal. This decision marked a departure from the appellant's request for the estate to cover all costs, reinforcing a particular stance on appeal costs in estate matters.

The Court of Appeal found no compelling reason to deviate from the general rule concerning costs, as stipulated in `s. 44` of BC’s `Court of Appeal Act, 2021`. This statutory provision typically entitles a successful respondent to recover appeal costs from an unsuccessful appellant. The court explicitly stated that it saw no necessity in depleting the estate's resources by requiring it to fund the appeal costs for either party.

While acknowledging that the appeal was not entirely frivolous, the Court of Appeal determined that the appellant's decision to challenge the rectification order was unreasonable. The court highlighted that the legal test for rectification under `WESA s. 59` had been clearly established and settled in the earlier *Simpson v. Zaste* decision. Furthermore, the court noted that the appellant had already received indemnification from the estate for his costs incurred during the initial BC Supreme Court dispute and had achieved no success in his appeal.

This ruling in `Peckover v Wall 2026 BCCA 350` underscores the British Columbia Court of Appeal's reluctance to award special costs in estate litigation appeals, particularly when the appeal challenges legal principles that have been clearly settled. The decision serves as a significant reminder that while initial litigation in estate matters might sometimes warrant a different approach to costs, appeals are subject to stricter scrutiny.

Lawyers advising clients in estate disputes should carefully consider the implications of this judgment. It reinforces the substantial risk of incurring ordinary costs when pursuing appeals that are deemed unreasonable by the court, even if the original dispute stemmed from an oversight by the testator, such as failing to review a draft will. The court's emphasis on preserving estate assets and adhering to the general rules for appeal costs provides a clear precedent for future `estate litigation special costs Canada` considerations.

This decision reinforces the BC Court of Appeal's reluctance to award special costs in estate litigation appeals, particularly where the appeal challenges settled law. Lawyers should advise clients on the significant risk of incurring ordinary costs when pursuing appeals deemed unreasonable, even if the initial dispute arose from a testator's oversight in reviewing a draft will.

Source: Original reporting via Canadian Lawyer Magazine