How Are BC Wills Dispute Costs Paid? In the past, the legal fees and costs of all parties involved in a BC will and BC estate dispute were ordered to be paid out of the estate. But more recently modern cost awards now follow the event in estate matters. However, Courts retain the discretion to deviated from this rule can follow the traditional approach when appropriate. In short, the court can award ALL parties to the dispute their costs when the deceased Willmaker is wholly or partially the cause of the need for an inquiry. Today Lorne MacLean, QC founder of MacLean Law explains the rules for an estate dispute. Our estate litigation team acts across BC and in Calgary Alberta.
BC Wills Dispute Costs – The Traditional Approach To Costs 1 877 602 9900
In Singh Estate 2019 BCSC 114 the court explained:
[11] Traditionally, costs of all parties involved in an estate dispute were ordered to be paid out of the estate. The estate would bear the costs of settling disputes in estate proceedings unless the losing party’s position was obviously unwarranted. The public policy behind the traditional approach is that where a will is ambiguous, and subsequent litigation ensues which is partially or largely cause by the testator, his or her estate ought to bear the costs of the litigation: Gard; and British Columbia (Public Guardian and Trustee) v. Sheaffer, 2015 BCSC 1306. Gard was cited with approval by Justice N. Smith in Moore v. Drummond, 2012 BCSC 1702.
[12] In Steernberg v. Steernberg, 2007 BCSC 953, Justice Martinson, citing the Court of Appeal in Vielbig, explained the traditional approach as follows:
[21] …. In [estate] cases where the validity of a will or the capacity of the testator to make a will or the meaning of a will is in issue, it is sometimes the case that the costs of all parties are ordered to be paid out of the estate. This is upon the principle that where such an issue must be litigated to remove all doubts, then all interested parties must be joined and are entitled to be heard and should not be out of pocket if in the result the litigation does not conclude in their favour. The estate must bear the cost of settling disputes as a cost of administration…. The question to be asked in such cases is whether the parties were forced into litigation by the conduct of the testator or the conduct of the main beneficiaries.
The Modern Approach To Costs
More recently the costs orders have changed to only have costs paid to the successful party in a Will dispute or estate litigation. As the Judge explained in Singh Estate:
[13] The traditional approach has been gradually displaced by the modern approach to cost awards where costs follow the event in estate matters. Courts retain discretion and have deviated from this trend and followed the traditional approach where justified. This often occurs where the deceased is wholly or partially the cause of the need for an inquiry.
[14] Justice Silverman helpfully explained the current approach in Jung v. HSBC Trust Company (Canada), 2007 BCSC 1740 at para. 106:
….
1. The costs of and incidental to a proceeding will follow the event unless the court otherwise orders.
2. If the cause of the litigation originated from the conduct or errors of the testator (i.e., unclear wording or validity of the will), then the costs of all parties will generally be paid from the estate on a full indemnity basis.
3. If there were circumstances which provided reasonable and sufficient grounds to have brought the action relating to questions of capacity or allege undue influence or fraud, the court will not normally make an order for costs against the unsuccessful party.
4. In an action under dependent relief legislation (i.e., where the proceedings are adversarial in nature and are not brought about by the actions of the testator), costs follow the event.
5. All costs awards are subject to the court’s discretion and an overriding test of reasonableness.
[15] Where the validity of a will has been called into question, it is the duty of the executor(s) to prove the will in solemn form of law: Trites v. Johnson (1945), 61 B.C.R. 397 (B.C.S.C) [Trites]at 399, cited with approval in Hetherington v. McLeod, 1991 BCSC 1; Morton at para. 36; and Fuller (Estate) v. Fuller, 2004 BCCA 218 [Fuller] at para. 43.
[16] Part 25 of the Supreme Court Civil Rules, B.C. Reg. 168/2009, governs estate proceedings. Rule 25-15(4) provides that a petition to prove a will in solemn form should not attract personal costs consequences for the respondent if “the respondent merely requires that the will be proved in solemn form” and “the respondent only intends to cross-examine the witnesses produced in support of the will,” unless the judge finds that “there was no reasonable ground for requiring proof in solemn form.”
[17] It is an executor’s duty to administer the deceased’s estate and to pay the debts out of the estate assets, including costs, before distributing any bequests to the beneficiaries. Real estate and other property are to be reducedtogether to satisfy just debts and expenses of the estate. Land is “administered in the same manner as personal property”: s. 162 of WESA.
[18] Where a party advances but fails to prove a claim of undue influence or fraud, that party is responsible for the costs of the whole action: Morton at paras. 40-41; Bates v. Finley Estate, 2002 BCSC 159 at paras. 119-129; and Kouwenhoven Estate v. Kouwenhoven, 2001 BCSC 1402.
Contact Our Unfair Will Lawyers Today 1 877 602 9900
In the end result, the Judge ordered all parties BC Wills Dispute Costs be paid in Singh Estate. If you have a costs question contact us immediately. If you think you have been unfairly dealt with in a Will we can help you understand your rights and how you may be made whole including having your costs paid out of the estate.
