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On Costs in Estate Litigation

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On Costs in Estate Litigation

Posted September 20, 2021

As recently confirmed in Boucher v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579 (ON CA), 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.  The point of this is to recognize that the winning party in estate litigation is usually entitled to reasonable costs from the losing party. Counsel will wish to take note that 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”.  A court may deny cost recovery by an estate trustee, in whole or in part, if the trustee “has acted unreasonably or in substance for his or her own benefit, rather than for the benefit of the estate”: Geffen v. Goodman Estate, 1991 CanLII 69 (SCC).  An order for an estate trustee to pay legal costs personally will be appropriate where it promotes public policy objectives such as the need to give effect to a valid will, and the need to ensure that estates are properly administered.

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