How to keep Probate Litigation Costs down

There is actually very little ‘probate litigation’ in Ontario.  Instead, we have ‘estate litigation‘ about a variety of estate-related disputes.  The most common disputes include executors who have not administered the estate at all (often because the executor lives in the house of the deceased) and complaints about the accounting for the estate, especially trustee compensation.

Why Litigation Costs So Much

All types of litigation are expensive and estate litigation is no exception.

The primary reasons are that the stakes are high, and the Court process demands large quantities of information, properly presented, and thoroughly reviewed and contested by all parties well in advance.  In addition, litigation depends on a rigid and extensive procedure to ensure that everyone has the right to be heard in full by the Court before a decision is imposed.

Techniques to control costs

The primary techniques to control estate litigation costs are –

• Focus on the forest and not the trees.  Avoid unnecessary disputes about small or irrelevant issues, and focus on the big, important issues.
• Focus on financial stakes, not emotional ones.  Litigation is a very poor mechanism to address old family grievances – it is not designed to ‘teach the other side a lesson’.  At its core, litigation is relatively good at resolving purely monetary disputes and relatively poor at everything else.
• Avoid unnecessary interlocutory motions.
• Consider retaining counsel on a contingency fee agreement to incent counsel to get a solution and to dis-incent ‘running the clock’.
• Avoid unnecessary cross-examinations and discovery.
• Know the law and the Rules of Civil Procedure and use the right process for the case.
• Be open to reasonable settlement at all times.
• Use mediation and alternative dispute resolution.
• Make offers to settle that are realistic, and which if not accepted will hopefully have positive ‘cost consequences’ in any award of costs by the Court.

Expert legal counsel can make an enormous difference to the pace and cost of resolving an estate dispute.  As a general rule, the more experienced the lawyers, the easier it is to resolve the dispute if the parties are reasonable.

Miltons Estate Lawyers – Probate, Wills, Trusts and Estate