Costs In Estate Litigation: When The Estate Pays And When A Party Pays Personally
April 23, 2026
BY: IAN ANDREW LAW
One of the most persistent misconceptions in estates practice is that the estate will simply pay everyone's costs. That used to be closer to a working assumption than it is now.
Ontario's modern approach is more disciplined. Costs in estate litigation still engage public-policy considerations, but they are no longer insulated from ordinary cost consequences just because the fight arose after a death.
Key Takeaways
• The estate does not automatically pay everyone's costs.
• The modern approach starts with cost principles, then asks whether estate-specific policy considerations apply.
• Testator-caused ambiguity and reasonable validity concerns may still justify estate-borne costs in some cases.
• Unreasonable positions or self-interested litigation can lead to personal costs and consequences.
• Cost analysis should inform strategy long before the end of the case.
Why The Old Assumption Is Dangerous
The traditional rule in estate litigation has been narrowed significantly. The court now looks carefully at why the litigation arose, whether there were genuine grounds to question validity or administration, and how the parties actually conducted themselves.
That means litigants who assume the estate will absorb the cost risk may be making a serious strategic mistake.
When The Estate May Still Pay
If the litigation was caused, in whole or in part, by the testator's own conduct or by genuine uncertainty the court had to resolve in order to protect valid testamentary intention or proper administration, the estate may still bear some or all of the costs. That remains part of the law.
But that is a justification, not a blanket entitlement.
When Personal Costs Risk Rises
A party who advances weak positions unreasonably, turns the file into private combat, or litigates in a way that no longer serves the public-policy purposes of estate litigation is at greater risk of personal cost consequences. Rule 49 and general costs principles still matter.
In estates litigation, cost exposure should shape strategy from the beginning. The modern approach rewards reasonableness and punishes the assumption that the estate is a cost shield.
Sources
• Courts of Justice Act, R.S.O. 1990, c. C.43, s. 131.
• Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rr. 49.10 and 57.01.
• McDougald Estate v. Gooderham, 2005 CanLII 21091 (ON CA).
• Neuberger Estate v. York, 2016 ONCA 303.
• McGrath v. Joy, 2022 ONCA 119.
• Anroop v. Naqvi, 2026 ONCA 142.
This article is for general information purposes only and does not constitute legal advice. Reading this article does not create a solicitor-client relationship. If you require advice specific to your situation, contact my office.