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Civil and Administrative
Litigation Opinions
for Self-Reppers


Stay Current With all
Ontario and Canada
Appeal Court Dicta

Civil Litigation - Costs - Estates

. Cain v Harnett

In Cain v Harnett (Div Court, 2023) the Divisional Court commented on costs reimbursement, including legal cost awards, for estate trustees:
[7] In Sawdon Estate v. Watch Tower Bible and Tract Society of Canada, 2014 ONCA 101, at para. 82, the Court of Appeal confirmed that estates trustees are entitled to be indemnified for all reasonably incurred costs, including legal costs. The Court of Appeal further held that courts have the authority to make “blended” costs orders, including on appeal. A blended costs order is appropriate if the losing party’s conduct unnecessarily increased the costs of litigation, but some costs were necessarily incurred to ensure that the estate is properly administered.
. Di Nunzio v. Di Nunzio

In Di Nunzio v. Di Nunzio (Ont CA, 2022) the Court of Appeal cited a change in the law of costs, as it relates to estate litigation:
[9] In McDougald Estate v. Gooderham (2005), 2005 CanLII 21091 (ON CA), 255 D.L.R. (4th) 435 (Ont. C.A.), at paras. 78-80, this court explained that the traditional approach in estate litigation that the costs of all parties are ordered payable out of the estate has been displaced by the modern approach of fixing costs in accordance with civil costs rules, unless the court finds that there are public policy considerations. Public policy considerations include where the dispute arises from an ambiguity or omission in the testator’s will or other conduct of the testator, or there are reasonable grounds upon which to question the will’s validity. The modern approach balances the need of the court’s oversight to ensure that only valid wills executed by competent testators are propounded with the need to restrict unwarranted litigation and protect estates from being depleted by litigation: at para. 85.


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