Re Singh Estate 2019 BCSC 1114 reviewed the law of court costs in estate litigation, and held that in this particular case both parties were entitled to full indemnity of costs from the estate of the deceased.
It has long been held that costs are borne by the estate where it was the deceased’s action that necessitated consideration of the validity of a will by the court. Mitchell v Gard (1863) 164 ER 1280 at 1281.
The public policy behind the traditional approach of payment of court costs from the estate is that where a will is ambiguous, and subsequent litigation ensues, which is partially are largely caused by the testator, his or her estate ought to bear the costs of the litigation. Moore v Drummond 2012 BCSC 1702.
In Steernberg v Steernberg 2007 BCSC 953 the court 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 an 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 in 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 in the litigation by the conduct of the testator or the conduct of the main beneficiaries.”
Jung v HSBC Company 2007 BCSC 1740 at para. 106 summarized the current approach to court costs in estate litigation as follows:
1. The costs of an 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 ( for example, 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 insufficient 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 ( wills variation) where the proceedings are adversarial in nature and are not brought about by the actions of the testator, costs will follow the event.
5. All costs awards are subject to the court’s discretion and an overriding test of reasonableness.
Where the validity of the will has been called into question, it is the duty of the executor to prove the will in solemn form of law. Fuller v Fuller 2014 BCCA 218 at 43.
However, where a party advances, but fails to prove a claim of undue influence or fraud, that party is responsible for the cost of the entire action. Bates v Finley Estate 2002 BCSC 159 at 119-129.