Who pays the legal costs in an estate dispute in Ontario?

Costs in Ontario estate disputes follow the general principles of Ontario's Rules of Civil Procedure, but estate matters have their own traditions. The approach to who pays costs depends on why the dispute arose and who won.

Historically, Ontario courts recognized that when a will challenge is brought because the conduct of the deceased or the estate's own circumstances gave rise to reasonable suspicion (for example, suspicious circumstances surrounding execution, or a testator of questionable capacity), the estate itself might bear the costs of the litigation regardless of outcome. This reflected the idea that the estate, in a sense, caused the dispute.

More recently, courts have moved toward applying the general rule more strictly: the losing party pays the winning party's costs, sometimes on a partial indemnity basis and sometimes on a full indemnity basis in egregious cases. An unsuccessful will challenge brought on thin grounds can result in the challenger paying the estate's costs out of pocket.

Where a trustee or executor brings or defends litigation in good faith in the honest performance of their duties, they are generally entitled to be indemnified from the estate. Where they acted unreasonably or in bad faith, courts may deny indemnification or even order them to pay personally.

Because costs exposure can be significant, getting an honest assessment of the strength of your position before committing to estate litigation is essential.