To The Victor Go the Spoils?
The outcome in most types of litigation is pretty simple – you lose, you pay. How much you pay usually depends on various factors, including how the parties conducted themselves during the litigation, whether any offers to settle were exchanged and on what terms.
The unique thing about estate litigation, however, is that historically, regardless of whether you were triumphant or defeated, the estate often bore the expense of the proceeding.
As most estate lawyers already know, however, things are changing. One speaker at the Ontario Bar Association’s 2007 Trusts and Estates conference explained the following trends arising out of more recent court decisions:
• Will Challenge – when unjustified allegations are made against a defendant, the plaintiff may be ordered to pay the defendant’s costs
• Will Interpretation – when a Will does not need interpreting or when its provisions are not unclear, the party requesting its interpretation may be denied its costs
• Dependant Support Claim – successful claimants may have to bear their own costs when the court considers factors (similar to those applied in other litigation) that weigh in favour of such a result
• Passing of Accounts – when executors neglect or refuse to furnish accounts, fail to keep proper records or mismanage estate funds, they may be ordered to pay the costs of the successful beneficiaries
I am pleased to see such modifications to traditional cost principles, as in my view it will deter unfounded litigation being brought by those mistakenly of the view that the estate will foot the bill.
Until tomorrow,
Natalia Angelini
