By Patrick K. McMurchy
What are court costs
Court “costs” are awards made in addition to whatever other orders are made, including monetary awards.
The usual rule in estate litigation is that the successful party is entitled to costs.
Cost awards serve a number of functions: costs will help pay a portion of successful party’s legal bill, they discourage ill-conceived actions and defences, they discourage unnecessary or improper steps in the litigation process, and the risk to both sides of paying costs is also intended to encourage reasonable settlements before those costs mount.
Success is measured as “substantial success.” Winning every issue in the case is not required in order to receive an award of costs. Although it is not a mathematical calculation, substantial success is usually defined as winning 75% of the issues that were fought.
Exceptions to the usual rule
Estate litigation has some important exceptions to the usual rule that the unsuccessful party is to pay costs.
Estate litigation may be necessary to resolve issues that are brought about through the conduct of deceased, who is, obviously not a party to the action. In these cases, the litigation is necessary and not a result of parties fighting against each other. For example, the estate may be ordered to pay costs where the issue is the interpretation of the terms of the will.
Another exception arises from the role of the executor in wills variation actions. An executor is a necessary party but should be neutral. Involvement as the executor is typically very limited. The estate will usually indemnify the executor for their legal expenses.
The difference between ordinary and special costs.
Costs may be awarded as ordinary costs or as special costs.
Ordinary costs usually only cover a portion of actual legal costs. Tariffs in the Supreme Court Civil Rules set down these costs as either a specific number of units or a range of units that can be awarded for each step taken in litigation. For example, ordinary costs for attendance at court for each day of trial is $1,000.
Special costs are at a much higher scale. In one recent case, the judge fixed special costs at $10,000 per day for each day of a three-day trial, which would be a rough estimate of what the legal bill for the successful party would be.
When special costs are ordered
Special costs may be ordered and be made payable by the estate where the issue is the interpretation of a will. The litigation arises out of the conduct of the deceased, and not any individual party, and it is necessary to remove any doubts as to the meaning of the terms of the will. All interested parties must be heard and should be entitled to the special costs even if they are unsuccessful in their arguments.
Special costs may also be awarded against a party who makes unsubstantiated and unfounded allegations against other parties of undue influence, coercion or fraud. Given the emotional nature of many estate cases, these allegations are often freely made and sincerely believed but without proof.
Costs are at the discretion of the judge
An award of costs is always at the discretion of the judge, but that discretion should be exercised judicially, which means in accordance with the established law, and ultimately, a judge will try to achieve fairness in the end result.
This short article is intended to give the reader a general understanding of some of the basic principles respecting the law relating to court costs . It is not intended as legal advice. In estate litigation, outcomes very much depend on the specific facts of each case.