General Rule In Wills Variation Actions Is Loser Pays the Winners Court Costs

Wills Variation Actions

Todd v Walker 2009 BCSC 537 is authority for the above proposition re costs.

The parties were half siblings.

The deceased left $1 to her daughter plaintiff, and the residue to her son, who was also the executor.

At trial the daughter was awarded %40 of the assets and was awarded double costs for trial and trial preparation as she had filed an offer to settle, and then did better at trial than the offer was for.

The court found that the decision to defend the action was his and his alone, so therefor he was personally responsible for payment of his sisters costs, rather than having his and her costs paid from the estate .

A helpful statement of the principles governing the issue of costs in estate litigation was set out by Martinson J. in Steernberg v. Steernberg, 2007 BCSC 953, in which she noted:

[21] In Vielbig v. Watertand Estate (1995), 121 D.LR. (4th) 485,1 B.C.L.R. (3d) 76 (C.A.), the British Columbia Court of Appeal approved the following summary of the law made by Master Horn in Lee v. Lee Estate (1993), 84 B.C.L.R. (2d) 341 (S.C.), with respect to costs in estate actions and actions under the Wills Variation Act:

An order for costs in favour of a completely unsuccessful party against a completely successful party is a most exceptional order. The general rule is that costs follow the event and, while a court may depart from this rule, any departure is usually in the way of depriving a successful party of costs and not of awarding costs to an unsuccessful party. In either case, the usual rule should not be departed from simply because an unsuccessful party did not expect to lose ….

In probate or administration actions or in proceedings for the construction of wills, the rule may be more frequently departed from. In such 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 case [sic] is whether the parties were forced into litigation by the conduct of the testator or the conduct of the main beneficiaries.

But the case is different where the litigation does not relate to the validity of the will or the capacity of the testator or the construction of the will. Actions brought under dependants’ relief legislation presume the validity of the will and the capacity of the testator and that his intentions are clear. There are not doubts to be settled. The remedies provided by such legislation are directed to the maintenance and support of the dependants of the testator and are based on public policy. The legislation does not invalidate the will, it merely permits the court to vary the provisions made by the testator. So an unsuccessful action under such legislation cannot be said to have been caused by a testator, or to have been necessary to enable the estate to be distributed. The action does not benefit the estate.

[5] Thus, in actions brought under the Wills Variations Act, the general rule is that the unsuccessful party is to personally pay the successful party’s costs.

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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