Estate Planning

Interim Cost Awards

By Hull & Hull LLP

Welcome to my week of blogs.

An issue that can crop up in estate litigation is whether a party is entitled to interim payment of costs payable out of the estate.  The reason for such an order is to fund litigation, such as a will challenge, out of the largesse of the estate.

The court has the discretion to order the interim payment of costs pursuant to Section 131 of the Courts of Justice Act.  A number of cases have addressed the interim payment of costs, including Waese v. Bojman as well as Zhao v. Ismail Estate (Trustee of) (link not available).  Both decisions recognize the court’s inherent jurisdiction to award interim costs in a proceeding, including estate actions.

As with any exercise of judicial discretion, the facts are crucial and how those facts are marshalled and presented to the court may carry the day.  Proper evidence and complete and financial disclosure is required.  However, even where an interim payment of costs is allowed, the court is likely to impose terms and require costs to be paid out in stages based on the progress of the litigation.

Thanks for reading.  A demain.

Justin

Full post as published by Toronto Estate Law Blog on August 11, 2008 (boomark / email).