lawtimesnews.com
By Aidan Macnab
November 29th, 2023
Man loses almost entire inheritance in costs for ‘reprehensible,’ ‘scorched earth’ litigation
For imposing massive costs on his mother’s estate with “reprehensible litigation behaviour,” the Superior Court of Ontario has ordered a man to pay substantial indemnity costs amounting to $1,000 less than his entire inheritance.
The decision is a “helpful message” to estates litigators that bringing cases with little merit may result in “significant cost consequences,” says Jacob Kaufman, an estates and commercial litigator at Donovan Kochman LLP. He was not involved in the case.
“If a party is going to commence litigation to challenge a will, and if that challenge is not proportionate, it should not be the estate trustee or the estate that bears the burden of that disproportionate proceeding,” says Kaufman.
The “biggest lesson” in Fanelli v Fanelli-Bruno is that courts are not shying away from imposing significant cost consequences on “would-be litigants who take a laissez-faire approach to challenging the validity of wills,” says Matthew Kersten, counsel for Sonia-Gina and a civil litigator at Sutherland Law in Vaughan, Ont.
“What [the decision] is saying to them is the courts will not be afraid to severely punish a litigant who comes to the court with hearsay and innuendo as opposed to solid facts,” he says. “Estates lawyers need to have more than just subjective impressions of what evidence they might be able to muster. They need to have their ducks in a row before they commence litigation.”
This Fanelli v Fanelli-Bruno dispute between siblings serves as “an example of scorched earth litigation,” said Superior Court Justice Fred Myers. “It’s a lose-lose all around unless the applicant pays the respondents’ costs.”
The “biggest lesson” in Fanelli v Fanelli-Bruno is that courts are not shying away from imposing significant cost consequences on “would-be litigants who take a laissez-faire approach to challenging the validity of wills. What [the decision] is saying to them is the courts will not be afraid to severely punish a litigant who comes to the court with hearsay and innuendo as opposed to solid facts. Estates lawyers need to have more than just subjective impressions of what evidence they might be able to muster. They need to have their ducks in a row before they commence litigation.
Matthew Kersten | Sutherland Law | Vaughan, Ontario
