Who Is Ultimately Responsible to Pay the Legal Fees?

In most lawsuits, the general rule applies that costs are awarded to the successful party

A significant concern before starting any lawsuit is the question of who pays legal fees and disbursements of the Court case at the end of the lawsuit.

In most lawsuits, the general rule applies that costs are awarded to the successful party. The costs would be a small portion of the actual legal fees based on the amount of work completed in the lawsuit. The disbursements usually amount to most of the lawyer’s out of pocket expenses such as photocopies, Court filing fees, facsimiles, etc.

In estate litigation, there can be an award of costs in favour of a completely unsuccessful party against a completely successful party. In proceedings for the construction of Will (proof of the Will “in solemn form”), some examples are:

  1. Where the validity of a Will is in issue;
  2. Where the capacity of the testator to make a Will is in dispute; and
  3. Where the meaning of a Will is in issue.

Awarding costs to the unsuccessful litigant is based on the fact that where such an issue must be litigated to remove all doubts, then all interested parties must be joined and are entitled to be heard and should not be out of pocket if the litigation does not conclude in their favour. The estate must bear the cost of settling disputes as a cost of administration. This is the reasoning which underlies such cases as Re Dingwall (1967) 65 DLR (2d) 43, McNamara v. Hyde (1943) 2 WWR 344 and Re Lotzkar Estate (1965) 51 WWR 99. The question to be asked in such a case is whether or not the parties were forced into litigation by the conduct of the testator or the conduct of the main beneficiaries.

Litigation that does not relate to the validity of the Will, the mental capacity of the testator, or the construction of the Will is treated differently. For example, in an unjust enrichment lawsuit or in a will variation claim, costs usually flow to the successful litigant only. The reason for this is that there are no doubts created by the making of the Will that need to be sorted out before the estate is concluded. Rather a certain person is challenging entitlement to a portion of the estate value.

The remedies provided by such legislation are directed to the maintenance and support of the dependents of the testator and are based on public policy reasons. The legislation does not invalidate the Will, it merely permits the Court to vary the provisions made by the testator. Therefore, an unsuccessful action under such legislation cannot be said to have been caused by a testator, or to have been necessary to enable the estate to be distributed. These actions do not benefit the estate.

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