Here’s How Ontario Courts Decide Who Pays Your Legal Costs in Estate Lawsuits

Are you involved in an estate lawsuit?

You’ll want to know who ultimately pays for your legal fees (costs). It’s a simple question.

Let me make my answer simple.

Courts follow a two-step process to decide who pays costs. A recent Ontario Court of Appeal decision explains how.

Are there any public policy considerations in your estate lawsuit? Then you may be in luck.

Costs also depend on who wins or loses the case. Unfortunately, that’s not the end of the matter.

Traditional Estate Cost Rules No Longer Apply

In the old days, costs would be paid from the estate. People often did not consider their risks in estate court litigation.

The rules have changed. This happened long before the pandemic.

Why Are Estate Lawsuits Different?

You must have a financial interest in the estate. Anyone with a financial interest in any estate can participate in court proceedings.

Courts must protect estates for those with any financial interest. In will contests, multiple potential beneficiaries are involved if wills are invalid.

Contrast estate cases with divorce proceedings. Divorces involve spouses fighting over their money. However, in estates people fight over someone else’s money.

Courts must therefore consider numerous participants. This includes those who may have financial interest under a prior will. And this can include people who inherit if there is no will. Parties involved can be minors, incapable persons and unborn beneficiaries.

Are There Public Policy Considerations?

Courts have the responsibility to protect any deceased person’s estate and intentions.

Deceased persons can’t testify in court.

Courts, therefore, must ensure their estates are properly administered.

When Do Ontario Courts Pay Reasonable Costs from Estates?

Courts must first determine if public policy considerations apply to proceedings. Reasonable legal fees can then be paid from the estate.

Public policy considerations involve:

1. Difficulties created by the deceased that cause lawsuits; and
2. The need to administer any deceased person’s estate.

Public policy is the first rule. This is subject to the overriding principles of reasonableness.

Reasonable costs are paid from estates if public policy permits. Courts require people in estate lawsuits to be reasonable. This is the rule no matter how emotional disputes become.

Courts enforce reasonableness by penalizing people who are unreasonable.

Unreasonable participants can prolong the litigation. They make things more expensive arguing over nonessential issues.

Do you need a lawyer to help with estate negotiation or mediation?
I can help. Estate Law is all I do. Contact me.