According to a recent study done in Australia , cases involving siblings were the fiercest of will disputes. After fights between siblings, disputes between children of the first marriage and a stepmother ranked as the most costly.
As a lawyer, who represents clients involved in estate disputes in Court, I am amazed how many estate fights drag on when the costs are almost bankrupting the parties.
In estate matters, emotions can run high and can often cloud one’s judgment.
In Ontario, a lot of clients do not appreciate that if they go to Court over an estate dispute, they run the risk of being hit with a huge award of thousands of dollars of costs if they lose.
The Ontario Court of Appeal in the case of McDougald Estate v. Gooderham established the principle that estate litigation is like any other type of civil litigation and that except in limited situations, the loser will be ordered to pay the costs of the winning party.
In a case called Salter v. Salter Estate , Justice Brown wrote:
“Parties cannot treat the assets of an estate as a kind of ATM bank machine from which withdrawals automatically flow to fund their litigation. The “loser pays” principle brings needed discipline to civil litigation by requiring parties to assess their personal exposure to costs before launching down the road of a lawsuit or a motion. There is no reason why such discipline should be absent from estate litigation. Quite the contrary. Given the charged emotional dynamics of most pieces of estates litigation, an even greater need exists to impose the discipline of the general costs principle of “loser pays” in order to inject some modicum of reasonableness into decisions about whether to litigate estate-related disputes.”
Before embarking on any litigation involving an estate, it is important to get advice as to the potential risks involved and the merits of proceeding with the case.