- The general rule is that a successful party is entitled to a costs award against the unsuccessful party.
- In Surrogate proceedings, the Court may order costs paid from the estate or by any party to the application.
- Challenging a will can carry cost risks: on formal proof, the Court may penalize a person who required formal proof of the will if the application was frivolous or vexatious, caused undue delay, or had no substantial basis, and if the grant applicant seeks an order that a caveat is frivolous or vexatious, the Court may discharge it and award costs against the caveator.
If you are thinking about challenging a will, or you are an executor facing a challenge, one of the first questions is who ends up paying the lawyers. Many people assume the estate simply covers everyone's costs. That is not always how it works.
In Alberta, the usual rules about costs apply, with some extra powers for estate cases. This article explains the general rule, the estate-specific exceptions, and the risks for someone who challenges a will. It is general information, not advice on your situation.
This article covers the law of Alberta.
The general rule: the winner is usually entitled to costs
Under the Alberta Rules of Court, a successful party to an application, proceeding or action is entitled to a costs award against the unsuccessful party. The Court may also order one party to pay another a costs award.
A costs award is a payment toward the other side's legal expenses. A lawyer can explain how it might apply to you.
The estate exception: costs can come from the estate
Estate cases are heard under the Surrogate Rules, which add a further option. In Surrogate proceedings the Court may order costs to be paid from the estate or by any person who is a party to the application.
This means the outcome is not limited to a simple choice between the estate and the loser. The Court looks at the dispute and decides who should bear the costs.
There is a specific rule for lawyers appointed to act for a class member. The costs of that lawyer are payable from the estate only if the Court specifically orders it.
Risks for the person who challenges a will
On a formal-proof application, the Court may direct costs. It may also penalize a person who required formal proof of the will if the application was frivolous or vexatious, caused undue delay, or had no substantial basis.
A caveat is the filing used to stop a grant from issuing. If the person applying for the grant shows a caveat is frivolous or vexatious, the Court may discharge it and award costs against the caveator. The Court fee schedule lists filing a caveat in surrogate matters at $300.
The Court may also order security for costs in contentious proceedings. Security for costs is money or a guarantee put up to cover possible costs, so be ready for that possibility.
- If you require formal proof of a will, the Court may penalize you where the application was frivolous or vexatious, caused undue delay, or had no substantial basis.
- A caveat found frivolous or vexatious can be discharged with costs against you.
- Security for costs may be required in contentious proceedings.
- The caveat filing fee is $300.
Quick comparison of the main cost tools
| Situation | What the Court may do |
|---|---|
| Ordinary proceeding | Successful party is entitled to costs against the unsuccessful party |
| Surrogate proceeding | Costs paid from the estate or by a party |
| Formal proof with no substantial basis | Penalize the person who required formal proof |
| Frivolous or vexatious caveat | Discharge it and award costs against the caveator |
What to do next
Costs risk is a good reason to get legal advice before you file anything, whether you are challenging a will or defending one as an executor. Outcomes depend on the facts, and a lawyer can talk through how the rules might apply.
- Write down what you think is wrong with the will and what evidence you have.
- Ask a lawyer how strong the challenge looks and what it could cost.
- Ask whether costs might be sought from the estate or from you personally.
- Ask whether a caveat is the right step before you file one.
- Keep copies of every document and court filing.
Frequently asked questions
Does the estate always pay for a will dispute?
No. The Court may order costs paid from the estate or by any party to the application. The general rule also favours a successful party against an unsuccessful one.
Who pays for a lawyer appointed for a class member?
The costs of a lawyer appointed for a class member are payable from the estate only if the Court specifically orders it.
What happens if my challenge has no real basis?
On formal proof, the Court may penalize a person who required it if the application was frivolous or vexatious, caused undue delay, or had no substantial basis. A frivolous or vexatious caveat can be discharged with costs against the caveator.
How much does it cost to file a caveat?
The Court fee schedule lists filing a caveat in surrogate matters at $300. That fee is separate from any legal costs that may be ordered.
Sources
- Estate Administration Act, SA 2014, c E-12.5 (King's Printer) — kings-printer.alberta.ca
- Surrogate Rules, Alta Reg 130/1995 (King's Printer) — kings-printer.alberta.ca
- Alberta court fees — alberta.ca
- Alberta Rules of Court, Alta Reg 124/2010 (King's Printer) — kings-printer.alberta.ca
- Surrogate Rules, Alta Reg 130/1995 (King's Printer) — kings-printer.alberta.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
This is a wills & estates question
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