I wrote previously about Woodward v. Grant, 2007 BCSC 1192, a case in which the plaintiffs unsuccessfully challenged the validity of Joseph Roberts’ last will. The plaintiffs had alleged that Mr. Roberts’ did not have the capacity to make his last will. The court found that he had.
Last week, Madam Justice Gray released her reasons for judgment on the issue of court costs. The decision on costs is at 2007 BCSC 1549.
The first issue the court considered was whether the successful defendants were entitled to double costs because they had made a formal offer to settle under Rule 37 of the Supreme Court of British Columbia Rules of Court.
In this case, Madam Justice Gray found that the offer to settle was not relevant to the case. The offer was for $1.00 “in full and final satisfaction of the plaintiffs [sic] claim for general damages, special damages and court order interest….” But, the plaintiff’s were not seeking damages, but were seeking an order pronouncing against the validity of the will.
On the other hand, the court also rejected the plaintiffs’ submissions that their costs should come out of the estate.
Madam Justice Gray reviewed the case law, and noted that the trend in lawsuits over wills was for the court to award costs to the successful party against the unsuccessful party. There are exceptions in some cases where the court finds that there is an issue that needs to be litigated often brought about by the testator’s conduct. Sometimes, where capacity is in doubt, the courts have awarded costs to all parties out of the estate.
But in this case, Madam Justice Gray found that the dispute was in substance adversarial between beneficiaries, some of whom would have benefited financially from a previous will. She found it appropriate to order that the unsuccessful plaintiffs pay the defendant’s court costs.
I don’t think there is a clear cut rule on whether the court will award costs out of the estate to all parties in a dispute concerning the validity of the will, or require the unsuccessful party to pay the successful party’s costs. In reading this case, and other cases, the cost awards may tend to reflect the trial judges’ views on the relative merits of the each side’s position. If a party has a reasonably good case to put forward, he or she may be awarded costs out of the estate, even if he or she loses. But, if the court finds that the unsuccessful party did not have a sufficiently good case to bring to trial, the court is more likely to apply the ordinary rule in lawsuits in British Columbia that the unsuccessful party must pay the successful party’s costs.
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