In her post from September 22, 2022, my colleague Ms. Bajaj wrote on the Superior Court’s decision in Di Nunzio v Di Nunzio. Since then, the matter was brought before the Ontario Court of Appeal on the grounds that the application judge erred in his decision, in part, regarding the award of costs.

The Applicant challenged the Last Will and Testament of her mother. The will challenge was dismissed in October 2021 and the Applicant was required to pay costs of approximately $111,000.

The Applicant appealed the cost award noting that the application judge erred in finding that there were no public policy considerations that warranted payment of the appellant’s cost from the estate.

The Court of Appeal noted the decision in McDougald Estate v. Gooderham (2005), 255 D.L.R. (4th) 435 (Ont. C.A.) highlighting that the public policy considerations that would result in the estate paying costs revolved around ambiguities or omission in a will, the conduct of a testator, or reasonable grounds upon which to question the validity of the will.

The Court of Appeal held that, although the Applicant’s claims were not frivolous and warranted court scrutiny, they did not meet the threshold of public policy considerations.

This decision highlights the difficulty in seeking to have the costs of challenging a will paid by an estate. Although maintaining high standards for cost awards is essential to dissuade frivolous will challenges, the Court of Appeal in Di Nunzio has seemingly reinforced the risk of having to pay one’s own costs in addition to the already rigorous requirements of challenging a will.

As noted in our previous blog on this topic, this case is an excellent example that parties involved in litigation should not rely on the courts to recover their costs and should strongly consider offers to settle.