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Challenging of a Last Will and Testament in Court and Who Pays the Lawyers

Who Pays for the Lawyers When a Last Will and Testament is Challenged?

Toronto Wills Fight Lawyer

The question of who pays the lawyer fees in estates lawsuits is of central importance to anyone who challenges a last will and testament.

Historically, the courts have taken the position that the lawyer fees of both parties are to be paid out of the estate, regardless of which party was successful.  This made it relatively easy for a lawyer to encourage his or her client to pursue litigation, knowing that there was a very minimal risk of costs being awarded against them.  The policy to award costs out of the estate was based on the idea that where there are reasonable grounds upon which to question the validity of a last will and testament, it is in the public interest that such questions be resolved without cost to those questioning the will’s validity.

The problem with this approach is that it encouraged frivolous litigation, as the applicant/plaintiff knew that even if they lost, their lawyer fees would be paid out of the estate.  Estates would frequently become depleted by the cost of the lawsuit, even where the litigation was unwarranted.

In recent years, the courts have become more cognizant of this problem and have made a clear move towards the general civil litigation regime in which the costs follow the event – i.e. “the loser pays his lawyer and some of the other side’s fees”.

In the case of Estate of Brett Salter, Justice Brown effectively summarizes the reason for the courts shift in position on the issue of costs in estates litigation:

A view persists that estate litigation stands separate and apart from the general civil litigation regime. It does not; estates litigation is a sub-set of civil litigation. Consequently, the general costs rules for civil litigation apply equally to estates litigation the loser pays, subject to the Court’s consideration of all relevant factors under Rule 57, and subject to the limited exceptions described in McDougald Estate. 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 factors that the court will consider when assessing the appropriate costs of an action or application are set out by the Ontario Court of Appeal in Cohen v. Kealey & Blaney (1985), 26 C.P.C. (2d) 211 (Ont. C.A.).  The factors include

  • the time spent
  • hourly rates
  • legal complexity
  • degree of responsibility assumed by the solicitor
  • monetary value involved
  • importance to the client
  • degree of skill and competence demonstrated
  • results achieved and the ability of the client to pay
  • and the expectation of the clients with respect to the fee.

In sum, if you are considering commencing a will challenge, it is crucial that you discuss the issue of legal costs with your lawyer prior to initiating the estates lawsuit.  The current state of the law is somewhat ambiguous, but there is certainly a greater willingness on the part of judges to award legal fees against the losing party.  Litigants must be aware that if their litigation is ill-advised or unreasonable, they may be responsible to pay the other side’s legal costs.