Court Costs in Estate Litigation

Court Costs in Estate Litigation

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.

Apportioning Court Costs

Apportioning Court Costs | Disinherited Vancouver Estate Litigation

PKMB v DHL 2018 BCSC 1039 dealt with the apportionment of court costs where both the plaintiff and the defendant achieved some success.

Rule 14 –1 ( 15) permits the court to award costs:

The court may award costs

  1. of a proceeding
  2. that relate to some particular application, step or matter in or related to the proceeding, or
  3. except so far as they relate to some particular application, step or matter in or related to the proceeding

and in awarding those costs the court may fix the amount of costs, including the amount of disbursements.

In Sutherland  v Canada AG 2008 BCCA 27 at para. 26,  the Court of Appeal held at paragraph 31 to the test for apportionment of costs in of the predecessor rule was:

  • the party seeking apportionment must establish that there are separate in discrete issues upon which the ultimately unsuccessful party succeeded at trial
  • there must be a basis in which the trial judge can identify the time attributable to the trial of these separate issues;
  • it must be shown that apportionment would affect a just result.

In determining how to apportion costs the two approaches were explained in Waterhouse v. Fedor

( 1987) 13 BCLR (2d) 186 at 190

The court agreed that the two methods may be used in determining the degree of success. One method involves the judge assessing a percentage figure to the relative success of the parties. The other method involves determining the number of days spent in trial on unsuccessful issues in proportion to the time spent unsuccessful issues. Either way, the relative success of the parties is determined in each party is entitled to that portion of his own costs, which are then set off against the other, and the difference, if any, is paid to the party in whose favor the difference lies.

The apportioning of caution not be a part of regular litigation and should be confined to relatively rare cases: Lewis v. Lehigh Northwest Cement limited 2009 BC CA 424 at paragraph 36

Court Costs of an Appeal

Court Costs of an Appeal

Kyle Estate v Kyle 2018 BCCA 61 discussed the issue of who should be awarded court costs of an appeal.


Section 23 of the Court of Appeal act RS BC 1996, provides:

23. Unless the court or a justice otherwise orders, the party who is successful on an appeal is entitled to costs of the appeal, including the costs of all applications made in the appeal.


In Marquez v Zapiola 2014 BCCA 35, the BCCA stated:

“Success in the event has been interpreted as substantial success see Fotheringham v Fotheringham 2001 BCSC 1321 , leave to appeal refused 2002 BCCA 454.


In that decision, the standard was described as follows:

“ The decision. Gold now seems to say that substantial success in an action should be decided by the trial judge looking at the various matters in dispute, and weighing their relative importance. The words “substantial success” are not defined. For want of a better measure, since success, a passing grade is around 50% or better, substantial successes about 75% or better. That does not mean a court must ascend into a meticulous mathematical examination of the matters in dispute and assigned a percentage to each matter. Rather, it is meant to serve as a rough and ready guide when looking at all the disputed matters globally:


In Mirza v Mirza 2007 BCCA 106, this court said:

Substantial success, determined by assessing the success on the major issues of substance, is sufficient for an order of costs Newham v Newham (1993) RFL (3d) , 49 BC CA.

Passing of Accounts and Court Costs

Passing of Accounts and Court Costs

Re Rodgers Estate 2017 BCSC 2001 discussed who should bear the costs of a passing of accounts hearing where it was asserted that no valid complaints were raised re the accounting by the party challenging them.

The court ultimately held that the estate should bear the costs but cited authority for who should pay for the costs if the administrator was forced to take the proceedings by a beneficiary who did not have valid reasons for forcing the issue to a hearing.

The Court:

I have considered the two authorities relied upon by Mr. McLellan and a decision not referred to but in my view helpful to the analysis, being Re Chevrefils Estate, 2010 BCSC 753. In that decision, District Registrar Sainty, in respect of costs of the passing of accounts said:

[28] As for the costs of this passing, in general, the costs of a passing of accounts are assessed as special costs and are paid out of the residue of the estate before the estate is distributed. Here, however, Mr. Kasting submits that Catherine Croft be denied her share of the residue of the estate as some form of “special costs” of the passing of these Accounts. He argues that, but for the refusal (or failure) of Catherine Croft to consent to the Accounts, this passing (and the legal fees associated with it) would not have been necessary and that if I hold that the “usual” course be followed (that the costs of this passing be paid out of the residue of the estate), Catherine Croft will “profit” from her actions, to the detriment of the other beneficiaries, leading to an unjust result.

[29] As I have noted, the general rule is that the estate must bear the costs of settling disputes as a cost of administration. The question to be asked is: whether the administrator was forced to the expense of passing the accounts by the conduct of a beneficiary? In my opinion, but for Catherine Croft’s refusal to approve the accounts this application would not have been necessary.

[30] That does not mean, however, that she ought not to be accorded the satisfaction and peace of mind which having this formal passing may bring if it is felt that such a passing was reasonable. An administrator has a duty to account to the beneficiaries. There is no requirement that a beneficiary consent to the accounts prepared by an administrator. He or she is entitled to attend at a hearing and to question the administrator and the accounts.

[31] However, in the circumstances of this case, I am of the view that there was no rational reason for Catherine Croft’s refusal to agree to the Accounts. She did not provide any particulars for her refusal – only the statement . . . regarding the residue of the estate which either makes no sense or is contrary to law. Further, in respect of her complaint in relation to the Administrator’s remuneration, she has failed to provide any particulars of her complaints or point to any specific failures on the administrator’s behalf . . .

18      While it has been ultimately conceded by Diane Rodgers that the accounts should be passed as presented, I am of the view that it was not unreasonable in all of the circumstances for her to proceed to the hearing. While her objections all fell by the wayside as a result of the hearing process, and perhaps she could have and should have reached that conclusion before the hearing, I cannot say, unlike in Re Chevrefils, that there was no rational reason for her not to agree to the accounts. There was a concern expressed about the amount of legal expense and a concern expressed about the relationship of the agent and the executor as it related to the expenses incurred by the estate.

19      Unlike in Re Chevrefils, there was some rational connection between the objections and the circumstances that prevailed, albeit those objections were eventually abandoned.

20      Accordingly, the costs of the passing incurred by the executor will be assessed as special costs, and will be paid out of the residue of the estate before the estate is distributed.

How the Award of Court Costs are Made in British Columbia

This video is about court costs. Typically and historically, court costs often came out of the estate. The unsuccessful party did not have to pay the winning party and that was the way it was for many, many years. Approximately 20 years ago in British Columbia, the courts began to be more discriminated on how the award of court costs was made.

There are typically a few different scenarios that can have different implication for costs. If for example, the reason of the court application is the testator’s own fault, for example, the will is ambiguous, then the court will typically award court costs out of the estate. If on the other hand, the parties are having a legal dispute over the validity of a will or such things, the court has a discretion to award cost and might very well award court costs to the winning party against the losing party, that is, the losing party would have to pay a contribution towards the legal fees of the winning party.

Typically an executor is entitled to be reimbursed for his or her legal fees if incurred properly. There’s a great number of different scenarios of cost in this video. The one I caution litigants about is the award of special costs. If for example a litigant claims undue influence against another party and fails to prove it at court, the trial judge may very well award special costs against the losing party which means that the losing party has to pay 100 percent of the winning party’s legal fees. That can be a very significant sum of money.

Offers to Settle Double Costs

Offers to settle double costs

Sim v Sim estate 2017 BCSC 345 discussed offers to settle and rejected an award for double costs finding that the offer was one that ought not to have reasonably been accepted as it required the plaintiff to give up the claim entirely while providing no rationale.

[1]             The plaintiffs were unsuccessful in seeking a variation of the will of the late Alexander William Sim, pursuant to s. 2 of the Wills Variation Act, R.S.B.C. 1979, c. 435. Costs were awarded to the defendants. The defendants now seek double costs under Rule 9-1(5) of the Supreme Court Civil Rules.

Settlement Offers

[4]             By letter dated August 11, 2015,  the plaintiffs offered to settle all claims if the defendants: paid them $250,000; made a life insurance policy, under which the plaintiffs were beneficiaries, irrevocable; agreed to continue to pay the premiums on the policy and paid the plaintiffs’ costs and disbursements at Scale B. The plaintiffs’ offer was open for 30 days.

[5]             On August 13, 2015, the defendants rejected the plaintiffs’ offer and countered with an offer that Mrs. Sim would agree to make the life insurance policy irrevocable, the plaintiffs would agree to make the future premium payments and each party would bear their own costs. The defendants’ offer remained open until it was revoked on December 11, 2015 which was after the trial had commenced but before it finished.

[6]             Based on Mrs. Sim’s life expectancy the cost to the plaintiffs of agreeing to pay the future life insurance premiums would have been $20,857. The plaintiffs did not respond to that offer by the defendants.

[7]             At the Trial Management Conference on September 9, 2015, the presiding judge recommended that the parties try to settle the case. By email on September 10, 2015 the defendants’ counsel suggested to plaintiffs’ counsel that if he responded to his clients’ offer they may reach a settlement. On September 14, 2015 the defendants’ counsel emailed plaintiffs’ counsel and said he looked forward to a response to his offer on August 13, 2015 and a possible settlement without trial.

[8]             On the same day, plaintiffs’ counsel, in effect, rejected the defendants’ offer of August 13th and the case proceeded to trial.


[10]         In Hartshorne v. Hartshorne, 2011 BCCA 29, our Court of Appeal offered some guidance when a trial court is asked to award double costs.

[11]         At para. 25 the Court of Appeal states:

[25] An award of double costs is a punitive measure against a litigant for that party’s failure, in all of the circumstances, to have accepted an offer to settle that should have been accepted. Litigants are to be reminded that costs rules are in place “to encourage the early settlement of disputes by rewarding the party who makes a reasonable settlement offer and penalizing the party who declines to accept such an offer. (Authorities are cited)

[12]         The Court goes on to state, at para. 27:

[27] The first factor – whether the offer to settle was one that ought reasonably to have been accepted – is not determined by reference to the award that was ultimately made. Rather, in considering that factor, the court must determine whether, at the time that offer was open for acceptance, it would have been reasonable for it to have been accepted…the reasonableness is to be assessed by considering such factors as the timing of the offer, whether it had some relationship to the claim (as opposed to simply being a “nuisance offer”), whether it could be easily evaluated, and whether some rationale for the offer was provided.

[13]         I do not agree with the plaintiffs that the results of the trial were mixed. All of the plaintiffs’ claims were dismissed with costs.

[14]         The order that Mrs. Sim continue to pay the premiums on the life insurance policy and make the policy irrevocable simply confirmed what she had agreed to do in her testimony. As defendants’ counsel said, the court put her position “in stone”.

[15]         However, I do not consider the defendants’ offer to have been one that ought reasonably to have been accepted by the plaintiffs. In assessing reasonableness, I cannot consider the ultimate decision in the case. At the time of the defendants’ offer they were essentially asking the plaintiffs to give up their claim entirely and, in addition, pay the future premiums for the life insurance policy. Accepting the offer would have required the plaintiffs to completely accept the defendants’ position. Furthermore, no rationale was provided by the defendants to the plaintiffs for the terms of the offer.

[16]         In the end result the defendants’ application for double costs is dismissed and they remain entitled to costs at Scale B.