Estate Litigation Blog

Costs in Will Challenge Litigation


by Rob Levesque, Published: September 11, 2016

Tags: costs,  estate,  litigation,  will challenge

It is well-settled that in estate litigation the unsuccessful party must generally pay some of the successful party’s costs – this is often referred to as the “loser pays principle”. 

Importantly however, the loser pays principle is subject to certain exceptions that are unique to estate litigation.   For instance, where there is a genuine dispute about the validity of a will, even an unsuccessful party may be awarded costs out of the estate.  The rationale for this exception is that it is important for the courts to give effect to valid wills that reflect the intentions of competent testators.

That doesn’t mean that the parties to every will challenge should expect that they will receive their costs from the estate, as illustrated by the recent case of Sweetnam v. Lesage.  In that case, the testator had left a will disinheriting his daughter, and leaving the entirety of his substantial estate to his fishing buddies.  At the conclusion of a long trial, the court found that the deceased suffered from delusions that caused him to disinherit his daughter.  As a result, the deceased’s will was declared invalid, and his entire estate passed to his daughter.  The fishing buddies received nothing.

When it came to decide the issues of costs, the Court applied the loser pays principle in ordering the unsuccessful party to pay a portion of the daughter’s legal costs.  Moreover, the Court refused to allow the unsuccessful party to recover any of her own costs from the estate.  The Court acknowledged that an unsuccessful party may be awarded costs out of the estate in appropriate cases, but noted that in this case the unsuccessful party had rejected a number of reasonable settlement offers made by the daughter.  Furthermore, since the daughter received the entire estate as a result of the will having been declared invalid, ordering the unsuccessful party’s costs out of the estate would be the same as ordering the daughter to pay the costs personally.   

Quinn v. Carrigan: "No litigation outcome is inevitable"


by Rob Levesque, Published: November 15, 2014

Tags: dependant support,  dependants,  estate,  estate litigation,  succession law reform act

It can be comforting to think of the law as an objective system that produces consistent, predictable results.  However, judges aren't computers, and different judges can interpret the same facts and the same law in different ways, producing totally different outcomes. 

It can be particularly difficult to predict the outcome of a dependant support application brought under Part V of the Succession Law Reform Act.  Determining what constitutes "adequate support" of a dependant spouse or child is not an exact science, and raises questions that don't have easy answers.  How do you place a value on a spouse's relationship with the deceased?   How can you treat the deceased's dependants and other family members equitably, having regard to their legal and moral claims against the estate?  While judges have developed various rules and principles that apply to dependant support claims, the fact remains that different judges will reach different conclusions based on the same facts and law. 

The recent case of Quinn v. Carrigan 2014 ONSC 5682 is a perfect example of this phenomenon. 

The late Mr. Carrigan left assets with a total value of approximately $2.4 million to his wife https://www.canlii.org/en/on/onscdc/doc/2014/2014onsc5682/2014onsc5682.pdfand two children, and nothing to his common law spouse of eight years, Ms. Quinn.  Not surprisingly, Ms. Quinn retained a lawyer and made a claim against Mr. Carrigan's estate for dependant support.  Ms. Quinn's claim went to trial, and the Court concluded that she was entitled to receive the deceased's pension death benefit, worth about $1.4 million.  

The deceased's wife appealed the Court's judgment to the Court of Appeal.  The Court of Appeal found that the trial judge had erred in concluding that Ms. Quinn was entitled to the death benefit, and accordingly ordered a second trial of her dependant support claim.  At the end of the second trial, the Court concluded that Ms. Quinn was entitled to a lump sum payment of $350,000.00.  

Ms. Quinn appealed the second judgment to the Divisional Court.  The Divisional Court held that the judge in the second trial had erred in calculating Ms. Quinn's spousal support payment.  However, rather than ordering a third trial, the Divisional Court conducted its own analysis of the dependant support claim, ultimately concluding that Ms. Quinn was entitled to a lump sum payment of $750,000.00.

In the end, Ms. Quinn had three separate hearings to determine her entitlement to a share of the deceased’s estate, and got three very different results.  The lesson for potential litigants is clear.  As expressed by Justice Corbett, who delivered the reasons of the Divisional Court in this case:  "no litigation outcome is inevitable".    

Best Lawyers for 2014


by Rob Levesque, Published: February 01, 2014

Tags: best lawyers,  brian schnurr,  estate,  felice kirsh,  jordan oelbaum,  trusts

Brian A. Schnurr, Felice C. Kirsh and Jordan D. Oelbaum were recently recognized by their peers as three of the Best Lawyers in Canada for the year 2014 in the "Best Lawyers in Canada" survey for the specialty area of Trusts and Estates.

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