Parties should be increasingly aware of the changed mood in our courts regarding the awarding of costs in estate litigation. The general rule has been that estate litigation operates subject to the general costs regime set out in s. 131 of the Courts of Justice Act and rule 57 of the Rules of Civil Procedure, that the winning party is usually entitled to reasonable costs from the losing party. Our courts are looking to impose greater discipline on the parties. “Parties cannot treat the assets of an estate as a kind of ATM bank machine from which withdrawals automatically flow to fund their litigation. The “loser pays” principle brings needed discipline to civil litigation by requiring parties to assess their personal exposure to costs before launching down the road of a lawsuit or a motion. There is no reason why such discipline should be absent from estate litigation. Quite the contrary. Given the charged emotional dynamics of most pieces of estates litigation, an even greater need exists to impose the discipline of the general costs principle of “loser pays” in order to inject some modicum of reasonableness into decisions about whether to litigate estate-related disputes”. Trustees will in the right circumstances be denied costs, or held responsible for costs, as indeed may the parties, to ensure that estates are properly administered. Blended costs orders are no longer unheard of. Trustees must act reasonably, or risk being denied costs. In fixing costs, the Court must determine the fair and reasonable amount that a party should pay in the particular circumstances of the case, rather than an amount fixed by actual costs incurred by the successful litigant. See once again, Sawdon Estate v. Sawdon, 2014 ONCA 101 (CanLII). And see Williams, J: “It can no longer be said in estate matters, including matters under the SDA, that parties and their counsel can reasonably expect all of their costs to be paid for by the assets of the testator or incapable person. The trend for some time now has been to examine the nature of the dispute and the conduct of the parties. Although in most cases it is also possible to consider which party is the “successful” party, that is not as significant a factor in these types of cases provided it can be said that the parties are properly motivated by the best interests of the person under a disability and are acting reasonably”, where substantial indemnity costs were ordered against a party on the grounds of conduct, Rudin-Brown et al. v. Brown AND Brown v. Rudin-Brown et al., 2021 ONSC 6313 (CanLII)
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