Who Pays Legal Costs in a Wills Variation Claim in British Columbia?

If you are a spouse or child who feels a will has left you too little, one of your first questions is likely to be money. Who pays the lawyers, and will the estate cover it if you go ahead?

There is no simple answer that fits every case. This article explains the general rules about estate legal fees in British Columbia and the questions that decide how costs are likely to fall, so you can ask better questions when you speak to a lawyer.

This article covers the law of British Columbia.

Why costs are hard to predict

A wills variation claim is a court proceeding, and the court decides the outcome. How legal costs are handled depends on the facts and on what the court decides. Because that depends on the strength of the claim, how the case unfolds and any offers made along the way, nobody can responsibly tell you in advance that the estate will pay or that you will.

What you can do is understand the pieces: what the estate can generally pay for, what needs approval, and what you may be responsible for yourself.

What the estate can pay for

The BC government says legal fees may be paid from the estate, but those payments must be approved by the court or by the heirs. That matters in a dispute, because the people who would normally approve spending may be the same people on the other side of your claim.

If an estate cannot pay all its debts, reasonable funeral and administration expenses and legal expenses incurred in administering the estate have a place in the priority order. Whether the costs of a particular claim fall within that category depends on your situation, so it is worth confirming with a lawyer. Either way, payment of legal fees from the estate still needs approval from the court or the heirs.

The executor's own pay is a separate cost from legal fees, but it can also come out of the estate and so affect what is left. An executor or administrator is entitled to a fair and reasonable allowance for care, pains and trouble and time spent, not exceeding 5% of the gross aggregate value of all the estate's assets, allowed by the Supreme Court or a registrar if directed by the court. Remuneration is allowed when the accounts are passed, in addition to other allowances for expenses actually incurred, and the court can settle the amount of compensation on application. These rules do not apply where the allowance is set by the instrument creating the trust, for example a will that fixes the executor's compensation.

Costs on related court applications

A dispute often brings other applications alongside it. An executor can petition the court for advice or direction on administration questions, and costs of that application are in the court's discretion.

A personal representative or a person interested in the estate may also apply to pass accounts or fix the personal representative's remuneration. Costs on those applications are assessed as special costs unless the court orders otherwise. These are separate from the main claim, but they can add to the total cost of a contested estate.

Questions that tend to shape the cost picture

• How strong is the claim on the facts, and what evidence supports it?
• Is there a realistic chance of settling before a hearing?
• Who is the executor, and are they also a beneficiary with their own interest?
• How large is the estate compared with the likely legal cost?
• Are you comfortable funding your own lawyer in the meantime, even if you hope to recover costs later?

The size of the estate matters because it limits what is available to be shared, and legal fees paid from the estate, which need approval from the court or the heirs, reduce what is left. If most of the estate goes to legal fees, everyone entitled to it receives less.

What to do next

How the rules on timing apply depends on your situation, so it is worth confirming with a lawyer early. Speak to a lawyer promptly so that any deadline is confirmed for your situation.

• Get a copy of the will and the death certificate.
• Write down your relationship to the deceased and your financial circumstances.
• List what you know about the estate's assets and who benefits.
• Collect any earlier wills, letters or messages that may be relevant.
• Ask your lawyer how fees will be funded and what the realistic range of cost is.
• Ask whether settlement discussions make sense before a hearing.

Frequently asked questions