Fasken
By Helen H. Low & Vivian Ho
May 6th, 2024
Litigation and Dispute Resolution Bulletin— What You Should Know About the Legal Costs of Estate Litigation
People often believe that they can litigate a wills and estate matter in a “risk-free” manner because the estate will bear the legal costs of the disputants. That is generally not true. A litigant must be prepared to bear their own legal fees and to pay the costs of the opposing party if they are not successful.
Historically, the courts often ordered the estate to bear the legal costs of parties in an estate proceeding, regardless of whose position was successful. The rationale was that the litigation was caused by (and therefore, the fault of) the deceased. An example of this approach to costs is where an ambiguous clause in an instrument needs the court’s interpretation. In such a situation, the court generally will award all parties their legal costs from the estate.
However, most estate disputes are now regarded as adversarial proceedings between parties who are pursuing their own personal interests in the disputed inheritance. As such, the courts now generally award costs as would be done in any other type of adversarial litigation – the successful party receives their costs from the unsuccessful party.
