Many people make a last will and testament (“the testator”) to arrange their affairs in an orderly fashion so that there are no estate problems after they pass away because they have no will. However, things do not always work out as planned even when a person is trying to do the right thing.

There are many challenges to the validity of wills after testators are gone although they really will not care about it by then. The following scenario is one type of challenge. You have two wills. In the first will prepared in 1980, you bequeath your estate to your brother and you tell him that is what you are doing. Your brother resides in another country but you were close to him at that time. You prepare a new will in 2005. All wills have a revocation clause revoking previous wills and other testamentary dispositions so you have a comfort level that the 1980 will is gone. Your brother and you have had a falling out. In your 2005 will, you bequeath your estate to your nephew who is your brother’s son. The nephew lives nearby and has now taken care of you for years shopping for groceries and doing yard work, among other things, because you are no longer mobile. You die. Your surviving brother hears of the new will and retains a lawyer to challenge the 2005 will. The challenge is based on an allegation of undue influence by the nephew and the fact that the 1980 will was in favour of the brother.

The executor of your estate is now forced to retain a lawyer. Your nephew also retains a lawyer. Extensive and protracted litigation takes place over a couple of years. The court decides that the 2005 will is valid but that the challenge was reasonable in the circumstances. Who pays the legal costs? Generally speaking, there is a longstanding authority in estate cases to pay the costs of the parties out of the estate. There are two main reasons, one private, one public. Where the difficulties with the will are caused, in whole or in part, by the actions of the testator, courts have held that the testator, through his or her estate, should bear the costs of their resolution. The public policy consideration is that it is important that courts give effect to valid wills that reflect the intention of competent testators. Where there are reasonable grounds to question the will, it is in the public interest that such a question be resolved without costs to those questioning the validity of the will. Thus, the nephew received less than intended.