Cost Award in Stanton v. Stanton Estate

In British Columbia, the court may order an unsuccessful litigant to pay the successful party court costs. This is the usual rule in lawsuits in British Columbia. Cost awards will usually only partially offset the successful party's actual legal costs.

But if the court finds that the unsuccessful party acted reprehensibly in the lawsuit, then the court may award special costs. An award of special costs will often either fully compensate the successful party for his or her legal costs, or come close.

The court may order special costs where a party seeks to challenge the validity of a will, and makes allegations of undue influence without any factual basis.

This is what happened in Stanton v. Stanton Estate. Mrs. Ophelia Stanton challenged her late husband's will, which left most of his estate to his daughter from his first marriage. She waited two and a half years after probate before challenging the validity of the will. She claimed that her husband's daughter had undue influenced him. She also claimed that he did not have capacity to make a will.

She lost at trial, and on appeal.

On the issue of costs, Mr. Bernard in Stanton v. Stanton Estate, 2008 BCSC 470, awarded the defendant daughter special costs against Mrs. Stanton. He wrote, in his reasons for judgment,

[17] In addition to the baseless allegation of undue influence, the defendant alleges that the plaintiff, in launching a challenge to the validity of the will two-and-a-half years after the grant of probate, had oblique motives, one of which was as an act of retaliation to the defendant’s counterclaim in the Wills Variation action. The defendant points out that within three weeks of the defendant’s counterclaim, the plaintiff suggested, for the first time, that she would be challenging the validity of the Will. The defendant also submits that the plaintiff did not pursue the action with an expectation of success, but rather for “collateral benefit” in the Wills Variation action, and that this is borne out in correspondence from the plaintiff. I am satisfied there is merit to the allegation of oblique motives. It accounts for the otherwise inexplicable delay in launching a challenge to the Will, and for the relentless pursuit of a futile case whilst a Wills Variation action was outstanding.

[18] I am satisfied, in light of all the foregoing, that special costs ought to be awarded against the plaintiff. The plaintiff’s conduct throughout the proceedings was reprehensible in the sense that it is deserving of reproof. The plaintiff should not be permitted to diminish the estate with the costs of the proceedings challenging the validity of the Will.