What is the current state of the law on costs in estate matters?

With respect to the question of costs, the discretion in estate matters to depart from the usual outcome that costs follow the event was discussed by Mr. Justice Gow in Morton v. National Trust Co., [1993] B.C.J. No. 1523 (S.C.), at paras. 39 and 40: 39 R. 57(9) [the predecessor of the current Rules with respect to costs] provides that costs of and incidental to a proceeding shall follow the event unless the court otherwise orders. In probate actions that has been the rule since 1907, subject however, to these provisos: (1) Where the testator or the residuary legatees have been the cause of the litigation; (2) If the circumstances lead reasonably to an investigation in regard to the propounded document; (3) The overriding discretion of the court. 40 If proviso (1) applies then ordinarily the court will grant the unsuccessful party costs out of the estate. If proviso (2) applies then ordinarily the court will not make an order for costs against the unsuccessful party.