When a loved one passes away, estate disputes can arise for many reasons. Sometimes a will appears unfair in how assets are distributed, while at other times the will itself may be unclear or, to some degree, outright invalid. It’s no surprise that these cases often end up in court. However, there is one big question that looms for everyone involved: Who will pay for the legal costs?
Estate litigation costs in BC are not always straightforward. While there are general rules that apply to most cases, there are likewise a slew of exceptions. Understanding how the courts approach costs in estate litigation is important, though, as the type of claim or circumstances behind the filing will likely play a role in who is responsible for legal fees.
The General Rule for Estate Litigation Costs
In most estate litigation cases, the general rule is that the losing party pays. This principle, known as “costs follow the event,” is meant to discourage weak or unnecessary claims in addition to promoting fairness in litigation.
It’s also important to understand that court-ordered costs don’t usually cover the full amount of a party’s legal bill. As outlined in the Supreme Court Civil Rules, the successful party can expect partial reimbursement based on factors like the complexity of the case and steps taken during litigation. While the winning side might not be made completely whole, they will still receive a substantial amount toward their legal fees paid by the losing side.
Fees Following Wills Variation Claims
A wills variation claim can be brought to court if a spouse or child feels they were not adequately provided for in a will. While the court can vary a will in certain circumstances, it starts with three key assumptions:
- The will in question is valid
- The will-maker had the physical and mental capacity to create their will
- The will reflects the will-maker’s clear intentions
These claims serve an important purpose as they help ensure dependents are treated fairly. However, these claims are not considered part of the ordinary process of administering an estate. Because of this framework, courts likely treat unsuccessful wills variation claims as private disputes between the claimant and the beneficiaries rather than necessary litigation to settle or distribute the estate. Therefore, the general rule applies; the unsuccessful party has to pay estate litigation costs, instead of the estate.
It’s also worth noting that an executor who is already a beneficiary usually can’t recover legal costs from the estate if they actively participate in a wills variation claim. This is because the executor would be acting in their own interest. However, if the executor takes a neutral stance by defining the will without advocating for a personal share, courts may allow the estate to cover those legal expenses.
Exceptions to the General Rule
BC courts are permitted discretion to depart from the general rule. This applies in situations where both sides have reasonable positions and the dispute arose due to confusing language in the will or questionable conduct by the will-maker. It’s possible a judge could make the estate pay the costs, choose not to award costs, or order each party to bear their own.
Ultimately, judges retain wide discretion when awarding costs. Even when the general rule suggests one party should pay, the court may consider the broader fairness of the situation and deviate from the general rule. Each case is judged on its own unique circumstances.
Fees Following “Curing” Claims
Aside from will variations, another common estate litigation dispute revolves around Section 58 in the Wills, Estates, and Succession Act. This doctrine empowers courts to “cure” a will that lacks the formal legal requirements to technically be deemed valid. For example, a will may not have been properly witnessed or signed. Additionally, a will may come under review if the construction or interpretation is unclear. The court must focus on interpreting the will-maker’s intentions as best as possible so the estate can be distributed appropriately.
In these cases, courts often order that legal costs for all parties be paid out of the estate. This is especially true when:
- The litigation was necessary due to the ambiguity or mistakes caused by the will-maker
- The executor was neutral in their role, only acting on behalf of the estate with no personal interests
- Beneficiaries were pulled into litigation through no fault of their own
This is one of the clearest examples of when estate litigation costs are not the responsibility of a losing party, but rather paid from the estate itself.
Fees Following Cases Concerning Capacity or Undue Influence
Another exception arises when someone contests a will based on testamentary capacity or undue influence. In both of these cases, the aim is to ensure that the will in question actually reflects the will-maker’s wishes. The court views this as a matter of public interest. If you file a claim like this and have reasonable evidence, courts are generally less likely to penalize you with costs, even if you lose. The key is whether the litigation was truly justified and necessary to test the validity of the will.
Fees Following Estate Administration Disputes
Conflicts sometimes occur in an estate, not due to the provisions of the will, but rather as a result of the executor’s management. Disputes between co-executors, delays in distributing assets, or disagreements over how estate duties should be carried out fall under this category. During an administration dispute, courts may order legal costs to be paid out of the estate, including situations where:
- The dispute was a direct result of the will-maker’s or the executor’s conduct, such as unclear instructions or a lack of communication.
- The litigation was necessary to move the administration forward so the estate could be properly and fairly distributed.
- The parties involved in the litigation acted in good faith to resolve real concerns regarding delays, mismanagement, or conflict between executors or beneficiaries.
These situations impact the estate as a whole rather than serving a single party’s interests. So, courts often place the burden on the estate as a shared expense rather than a personal penalty.
When to Work with a Lawyer
If you’re facing an estate dispute over a will or the actions of an executor, it’s important to speak with a lawyer as early as possible. Legal costs can be significant, and understanding your rights and responsibilities upfront may help you avoid unnecessary expenses and delays. Whether you’re contesting a will, defending your role as executor, or simply trying to ensure fair treatment, the estate litigation team at Stephens & Holman can help. Contact our office today to learn more and schedule your free consultation.