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.   

Costs Award Against Power of Attorney Personally


by Robin Spurr, Published: November 06, 2015

Tags: bad faith,  costs,  estate litigation,  fiduciary duty,  litigation,  power of attorney

A recent Court of Appeal decision made it clear that when Attorneys for Property are faced with contentious family disputes, they must remember that their fiduciary obligation in litigation is not solely a question of financial benefit for the incapable person.  Rather, the Attorney must consider what is in the person’s best interests overall, which may include mending family ties and settling at an early stage.  Otherwise, unreasonable conduct could result in the Attorneys finding themselves personally liable for the legal costs.

When estate litigation gets tense, lawyers must stay cool


by Rob Levesque, Published: December 11, 2013

Tags: estates,  litigation

Felice Kirsh was recently quoted in an article on AdvocateDaily.com.  In "When estate litigation gets tense, lawyers must stay cool", Ms. Kirsh explains that when an estate litigation scenario becomes heated or tense, it is incumbent upon the lawyer to remain calm and level-headed.

“The vast majority of cases are highly emotional because you’re dealing with family members. Family relationships are complex ­– they’ve lasted for many, many years,” says Kirsh. “There might be built-up tensions, grudges or jealousies that manifest themselves in this last battle over someone’s estate.” Continue reading here.

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