In what circumstances will the court grant costs to the unsuccessful party in a probate action?
British Columbia, Canada
The following excerpt is from Stanton v. Stanton Estate, 2008 BCCA 362 (CanLII):
In Morton v. National Trust Co., Mr. Justice Gow observed, correctly in my view, that: (i) in probate actions where the testator or the residuary legatee has been the cause of the action, the court ordinarily will grant the unsuccessful party costs out of the estate; (ii) where that is not the case, if the circumstances lead reasonably to an investigation in regard to the propounded document then ordinarily the court will not make an order for costs against the unsuccessful party; and (iii) where an unsuccessful party has advanced but failed to prove pleas of undue influence or fraud, then ordinarily costs for the whole action will be assessed against that party.
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