Who Pays Legal Costs in a British Columbia Estate Dispute?

Estate disputes can become expensive, and one of the first questions people ask is who ends up paying. Will the estate cover everyone's legal bills, will the loser pay the winner, or will each person carry their own costs? The honest answer is that the court has wide discretion, and the result depends on the facts.

This article explains the starting rules for costs in the British Columbia Supreme Court and the exceptions that can change the outcome. It does not predict what a court would do in your case, and it does not replace advice from a lawyer who can look at your documents.

This article covers the law of British Columbia.

The starting rule: costs follow the result

Under Rule 14-1(9) of the Supreme Court Civil Rules, the costs of a proceeding must be awarded to the successful party unless the court orders otherwise. In plain terms, the person who wins is usually expected to be paid part of their legal costs by the person who loses.

Costs are normally assessed as party and party costs under Appendix B of the Rules, but the court may order special costs instead. How much a costs award comes to, and how it compares with what a party actually paid their lawyer, depends on the facts of the case, so it is worth confirming with a lawyer. Special costs are a different category, and a lawyer can explain when a court might choose them.

Exceptions that can change the result

The general rule has built-in exceptions. The court can depart from it because the rule itself begins with the words "unless the court orders otherwise". Other specific exceptions include the following.

• Improper or unnecessary steps: if anything is done or omitted improperly or unnecessarily by or on behalf of a party, the court may make a costs order against that party.
• Small amounts: a plaintiff who recovers an amount within the Provincial Court's small claims jurisdiction is not entitled to costs, other than disbursements, unless the court finds there was sufficient reason to bring the proceeding in the Supreme Court.
• Special costs: the court may order special costs rather than the usual party and party costs.

These exceptions mean that winning does not guarantee a full recovery of your legal spending, and losing does not always mean you pay everything the other side spent.

Does the estate pay?

Many people assume the estate automatically pays for everyone's lawyers. That is not something you can safely assume. Estate cases often involve the court's discretion, and whether costs come out of the estate, from another party, or from you personally depends on the type of dispute, who brought it, how it was conducted and how it ended. A lawyer can tell you how courts have approached your particular kind of claim.

There is also a practical point. Payments in a successful wills variation case are generally borne rateably by the will-maker's estate, unless the court decides otherwise. That rule is about the provision ordered for the claimant, not about legal fees, so keep the two ideas separate when you read a court order.

Other steps in a dispute and the rules that apply

Costs risk is not limited to a final trial, and other steps along the way follow their own rules. The table below sets out what those rules say. Whether any of them changes a costs result depends on the facts, so it is worth confirming with a lawyer.

How a settlement deals with costs depends on its terms and on the facts, so it is worth confirming with a lawyer before you agree to anything. Capable adults may sometimes agree among themselves to distribute an estate differently, although only the court can vary a will. Where a minor or an incapable adult is involved, the Public Guardian and Trustee has a role: it may comment to the court on a proposed settlement involving a child, and it must be served with the notice of civil claim where an incapable adult is involved.

What to do next

If you are facing, or thinking about starting, an estate dispute, take stock of your costs exposure early. Weighing the possible cost against what is at stake is often a more useful first step than deciding who is right.

• Write down exactly what you want from the dispute and what the estate is worth, as far as you know.
• Gather the will, any grant documents, court filings and correspondence.
• Note any deadlines. For example, a wills variation claim must be started within 180 days of the grant being issued in British Columbia.
• Ask a lawyer how the court is likely to approach costs for your type of claim, and whether estate funds might be involved.
• Ask about settlement options before costs build up, and about how your own conduct could affect a costs order.

Frequently asked questions