Paying the Cost of Challenging a Will

In the BC Court system a plaintiff takes a risk suing where, if they lose, they not only pay their own lawyer's legal fees, they end up paying some (and sometimes most or all) of the defendant's legal fees. The default in BC is that the loser pays "costs". This, sometimes, gives people pause before suing because they should only sue if they have an arguable case.

In estate litigation cases, the responsibility to pay costs is, often, the estate's responsibility, even when the validity of the will is disputed. However, in a recent case, the son who challenged the validity of the will had to pay the estate court costs for his failed challenge.

In the case of Schell Estate (Re), 2019 BCSC 2168, the dad died April 28, 2018, only 2 months after making a new will. The will gave everything to his daughter, and completely disinherited his son. In the will, dad's reasons were because of the different financial circumstances of his two children. When the dad died, he had a small bank account and a house.

Shortly after dad's death, in May of 2018, his son filed a Notice of Dispute claiming that the will was invalid, his dad didn't have capacity or was unduly influenced to make the will.

Substantial investigations were made by the daughter, and executor, to prove that the dad, although sickly, had full capacity to make the will. Based upon that overwhelming evidence, the son finally withdrew the allegation that the will was invalid - the week before the executor's application to prove the will in solemn form (validate the will before the court).

The application to prove the will proceeded and the executor was successful, and her legal fees were paid out of the estate on a special costs basis. However, the dispute remained as to whether the son should have to pay the estate "court costs" for challenging the validity of the will in the first place.

The Court noted:

[19] There is no evidence from Wayne Schell as to why he alleged the deceased lacked capacity or was under undue influence. For example, there is no affidavit evidence that he visited his father and he observed certain things that made him question his capacity. Counsel pointed to a couple of entries in what I was told were hundreds of pages of medical records, that at one point in hospital the deceased had delerium. There is no evidence this was an ongoing problem. Although Lisa Schell lived with and cared for her parents, there is no affidavit evidence from Wayne Schell as to why he thought his father may be under undue influence. There is simply the fact that the will made Lisa Schell the sole beneficiary. The will contains a clause referring to Lisa Schell's and Wayne Schell's different financial circumstances. 

The Court concluded that the son would be responsible to pay costs:

"[20] I recognize that Wayne Schell withdrew his allegations and consented to proof of the will in solemn form very soon after his counsel obtained the information needed to advise him. However, that does not address why the Notice of Dispute was initially filed. On the evidence filed on this application, I find there were not suspicious circumstances as they have been defined in the case authorities, or reasonable grounds to challenge the deceased's capacity, or to make an allegation of undue influence. I do not find that Wayne Schell was "merely" requiring the will be proved in solemn form within Rule 25-15(4). When there are allegations of lack of testamentary capacity or undue influence, it is the duty of the executor to prove the will in solemn form despite the withdrawal of the allegations: Trites v Johnson, 3 W.W.R. 100 at p. 101. As a result the allegations made by Wayne Schell, Lisa Schell as executor was required to bring the application, and incurred that expense. In my view, she acted reasonably in continuing with the application even after Wayne Schell withdrew his allegations. While Wayne Schell is no longer opposed to the application by the time it was heard, his allegations were the reason the application had to be brought. As a result, I order that Wayne Schell pay to the estate the costs of the proving the will in solemn form at Scale B of Appendix B of the Rules. 

Therefore, even in estate cases, a person opposing a will should be careful and have real reasons for claiming the will was invalid or they may be penalized with costs for an unsuccessful challenge.

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TAEYA FITZPATRICK Taeya Fitzpatrick has specialized in strata law for most of her practice, has won cases for her clients in the BC Supreme Court, the BC Court of Appeal, and assisted with a client succeeding in defending a Civil Resolution Tribunal claim. Taeya offers full services to a strata corporation or a strata owner from redrafting the strata’s bylaws, collection of outstanding strata fees or other charges, issues with bylaw enforcement, to amending the strata plan. For more information on the services provided, you can reach Taeya by email, phone: 250-763-4323, or at her Web Page.