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Costs in Estate Litigation

by Robin Spurr

One of the questions we hear most often as estate litigators is “will I get my legal costs back?”.  It is very common in litigation for one party or both parties to feel that the litigation would have been unnecessary but for the actions of the other party, and at the end of the day, they want the other party to pay the costs incurred in the litigation.

Costs are a complicated issue that can throw even the most seasoned estate litigator off balance.  Whether the court at the end of the day will award costs against one party or the other, or order the costs of the litigation to be paid by the deceased from his or her estate, remains completely in the discretion of the judge.  And judges, just like everyone else, can surprise you.

Usually, if the matter goes all the way to a hearing before a judge, the winner of the dispute receives an award for costs.  However, that is not a guarantee and will almost always be only a fraction of the actual legal costs spent in the litigation.

There are different factors that a judge can consider when deciding an award for costs.  Specifically, a judge may consider the proportionality of the litigation.  If the amount in dispute is $150,000.00, but the parties spent $300,000.00 litigating the issues, a judge may be less inclined to order either party be reimbursed because the costs far outweigh the potential gain.  A judge may also consider the actions of the parties.  If one or both parties are unreasonable and uncooperative, and have thereby caused the costs of the litigation to balloon, that party may not be awarded any legal costs.  Another important factor the judge may consider is whether an offer to settle was made by either party.  If the winning party ultimately obtained a result less favourable to the offer that was made to them, the judge may see that as unreasonable.  The judge may find that the party (in hindsight) should have accepted the offer and the whole trial could have been avoided.  That party may not be entitled to their legal costs after the date the offer was made.

There are all kinds of factors to consider when deciding whether to proceed to a hearing, including how likely it will be that you can recover your costs.  In the end, a reasonable and pragmatic approach to litigation will win the day.