Recent Cases On Costs In Estate Litigation

The issue of costs in estate litigation is important for clients and practitioners alike. Courts across Canada have trumpeted the "modern approach" to costs in this area, which involves a careful scrutiny of the claims that were made and the conduct of the parties, rather than allowing the estate to be an "ATM machine" for the parties in every case. Three recent decisions of the Supreme Court of British Columbia, dealing with different aspects of estate litigation, provide helpful illustrations of this approach.

The decision of Henderson v. Myler, 2022 BCSC 1530 (31 August 2022, MacNaughton J.) involved the costs award following an 11-day trial on whether documents left by Ms. Murray should be validated under s. 58 of the Wills, Estates and Succession Act. In a comprehensive decision released last year (2021 BCSC 1649), Justice MacNaughton held that the documents could not be validated. This conclusion was reached, in part, because the effect of such a validation