- The usual rule is that the successful party is entitled to costs from the unsuccessful party.
- In some types of estate litigation, the courts may award costs to all parties out of the estate on the theory that the litigation was brought about by the conduct of the deceased.
- More recent decisions have applied the rule that the unsuccessful party is required to pay costs to the successful party in disputes concerning the validity of wills.
- In Wills Variation Act cases, the courts have followed the approach that the unsuccessful party pays the costs, but not in all cases.
- Executors and trustees when acting within their fiduciary capacities are entitled to be indemnified for costs they reasonably incur. They may be indemnified in disputes over the validity of wills, even where the wills are found to be invalid.
- Costs may be apportioned, but this is an exception to the usual rule that the successful party is entitled to costs. A party seeking apportionment must show that there are separate and discrete issues. There must also be a basis on which the judge can assess the time at trial attributable to the separate issues, and the result of the apportionment must be just.
- The amount awarded to the successful party is not the proper method of assessing that party’s success for apportionment.
- Special costs may be awarded against a party to discourage reprehensible conduct, including making unproven allegations of fraud or undue influence, both of which are serious allegations that can harm the reputation of a party. But the award of special costs is discretionary and the court will consider the particular circumstances.
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