Estate Planning

Cost Awards - Not What They Used to Be

By Hull & Hull LLP

As noted in one of my earlier blogs, gone are the days where estate litigants almost automatically were awarded their costs out of the estate. The trend in recent years has adopted elements of the loser- pays philosophy, which has long been applied to other types of litigation. 

Moreover, parties in estate matters who conduct themselves in such a manner that serves to protract and unnecessarily increase the costs of litigation can more and more often find themselves penalized with a cost award.

This trend is no more clearly seen than in Teffer v. Schaeffers, a recent decision of the Ontario Superior Court of Justice, where an estate trustee was Ordered to personally pay more than half of the legal costs awarded to the various other parties due to his conduct in the litigation.

That said, less than 25% of the aggregate legal costs sought were actually awarded (although I understand further submissions are being made).  This result is indicative of another noteworthy trend that we are seeing in estate matters. That is, judges are increasingly exercising their discretion to ensure cost awards are subject to the overriding principle of fairness and reasonableness in light of all the circumstances of each particular case, as well as proportionate to the amount at issue (in addition to being reflective of the factors set out in Rule 57.01(1) of the Rules of Civil Procedure).

This decision should serve as a caution to anyone involved in estate litigation – costs (even to the victor) are not guaranteed! 

Have a great day,

Natalia Angelini

Full post as published by Toronto Estate Law Blog on July 08, 2009 (boomark / email).