The Court held that where an executor successfully defends proceedings but was predominantly acting in his own personal interest (defending a trust claim over property registered in his name) rather than in a representative capacity, the executor is not entitled to indemnify his costs from the deceased's estate under UCPR r 42.25, even though a minor family provision claim was also defended in a representative capacity. The Court declined to apportion costs between the trust and family provision claims, finding them insufficiently separable and the family provision claim too minor (well below 10% of hearing time). The Calderbank offer was held not to have been unreasonably rejected where it did not adequately address the central trust issue, not all evidence had been filed at the time of the offer, and the foreshadowing of an indemnity costs application was insufficiently clear. The Court left open whether Cherry v Boultbee principles can be applied to fashion costs orders in estate proceedings, but separately ordered that the executor could satisfy the plaintiff's unpaid costs liability from her share of the residuary estate as a practical enforcement mechanism.
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