Estate Planning

A Tougher Line on Costs Growing in Canada?

By Hull and Hull LLP

Estate litigators in Ontario know full well that the historical rule that costs are usually paid from the estate assets is no longer the case. They are seeing a trend in the case law that if the Court is of the impression that one of the parties to the dispute has behaved improperly at any stage of the litigation, including advancing a position not supported by the evidence, significant cost awards against that person could be made. 

Moreover, Judges seem to be 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. So even if one is successful and has conducted herself appropriately in the litigation, she may still have to absorb a portion of (and possibly all of) her legal costs.

We are also seeing evidence of this trend beyond our borders, notably in a recent Alberta decision, where the Court dismissed a son's Will challenge in respect of his deceased father's estate, and similarly dismissed his dependant's relief claim. 

Notwithstanding his loss, the son sought recovery of his legal costs from the estate. The Court found, however, that he was to personally pay his costs as, (a) the testator did not cause the litigation, (b) the challenge to the testator's capacity and allegation of undue influence were unreasonable, and (c) the son rejected reasonable offers to settle. Moreover, the son was Ordered to pay 'double party-party costs' of his sister, a beneficiary and estate trustee of the estate (as a result of the Rules of Alberta that seem to bear some resemblance to our Rule 49).

I suppose this serves as another reminder to us all to keep this issue top of mind throughout the life of a dispute.

Thanks for reading and have a good day,

Natalia Angelini

Full post as published by Toronto Estate Law Blog on July 08, 2010 (boomark / email).