Many people hesitate to bring a claim against an estate because they fear being ordered to pay significant legal costs if the matter does not proceed to trial.
A common assumption is that if someone starts a claim and later withdraws it, they automatically have to pay the other side's legal fees.
The Alberta Court of King's Bench considered this issue in Robert Theodore Ferry (Re), 2024 ABKB 538. The decision provides important guidance on costs, family maintenance and support claims, and what happens when a claimant decides not to continue litigation.
The Background
The dispute arose following the death of a husband who left a will that largely benefited his children from a previous relationship.
His surviving spouse of approximately 40 years received certain limited benefits under the will, including the ability to remain in the family home for a period of time and certain personal property.
Believing that the will did not adequately provide for her, the surviving spouse commenced a family maintenance and support application and sought additional information regarding estate administration.
Several years later, she chose to discontinue the proceeding.
The executor then sought approximately $95,000 in solicitor-client costs from the surviving spouse, arguing that the discontinued claim justified a significant costs award.
Does Discontinuing a Claim Mean You Lose?
One of the most important lessons from the decision is that discontinuing a claim does not necessarily mean the claim lacked merit.
People discontinue legal proceedings for many reasons, including:
- Financial pressure;
- Health concerns;
- Litigation fatigue;
- Changing personal circumstances;
- Settlement considerations; or
- The uncertainty of future recovery.
The Court emphasized that a discontinuance is not automatically an admission that the claim was improper or should never have been brought.
Simply deciding not to continue litigation does not necessarily make the opposing party the successful party for costs purposes.
Family Maintenance Claims Are Different
The decision also highlights the unique nature of family maintenance and support applications.
Unlike many ordinary civil disputes, these applications are rooted in public policy concerns.
The purpose of Alberta's family maintenance legislation is to ensure that spouses, Adult Interdependent Partners, and other qualifying family members are not left without adequate support following a death.
Because of that policy objective, courts often approach costs differently than they would in a typical commercial lawsuit.
The Court recognized that family maintenance claims frequently involve genuine questions about support, dependency, and fairness that deserve careful consideration.
The Importance of a Genuine Claim
A key factor in the Court's analysis was whether the surviving spouse had a legitimate basis for bringing her application.
The evidence suggested there were genuine issues regarding:
- Her financial circumstances;
- Her support needs;
- The adequacy of the provision made for her under the will; and
- The structure of the estate assets.
The Court concluded that her claim was not frivolous, abusive, or brought for an improper purpose.
That finding played an important role in the costs decision.
Proportionality Matters
Another important theme running through the decision is proportionality.
The executor sought solicitor-client costs, which represent one of the highest levels of costs recovery available.
Courts generally reserve such awards for exceptional circumstances involving misconduct, bad faith, or improper litigation behavior.
The Court was not persuaded that such circumstances existed.
It also considered whether the costs sought were proportional to the issues involved and whether it would be fair to require the surviving spouse to bear the full burden of those expenses.
Litigation Conduct Is Still Relevant
Although the executor alleged that the surviving spouse had engaged in improper conduct, the Court found the evidence supporting those allegations to be insufficient.
This serves as an important reminder that serious allegations require meaningful evidence.
Courts are generally reluctant to impose punitive costs consequences based on allegations that have not been proven.
Why the Claim Was Discontinued
The Court ultimately concluded that the surviving spouse's decision to discontinue the proceeding was not evidence that the claim lacked merit.
Instead, the Court accepted that she made a practical decision not to continue pursuing costly litigation in circumstances where the outcome remained uncertain.
Many litigants face this reality.
The decision to stop pursuing a claim can sometimes reflect economics and personal considerations rather than the legal strength of the case.
Key Takeaways
Discontinuing a Claim Does Not Automatically Trigger Costs
A withdrawal does not necessarily mean the claim was weak or improperly brought.
Family Maintenance Claims Receive Special Consideration
Courts recognize the public policy objectives underlying applications for maintenance and support.
Genuine Claims Matter
Where an application raises legitimate questions about support and entitlement, costs may not be awarded even if the claim is later abandoned.
Solicitor-Client Costs Remain Exceptional
Courts generally reserve these awards for cases involving serious misconduct or exceptional circumstances.
Proportionality Is Important
The amount of costs sought must be reasonable in light of the issues and circumstances of the dispute.
The Bottom Line
Robert Theodore Ferry (Re) serves as an important reminder that estate litigation is not always a simple win-or-lose exercise. In family maintenance and support matters, courts often take a broader view of fairness, the nature of the claim, and the reasons why litigation proceeded or came to an end.
A person who discontinues a support claim is not automatically responsible for the estate's legal fees. Each case will depend on its own facts, the merits of the underlying claim, the conduct of the parties, and the overall interests of justice.
MerGen Law is Here to Help You
At MerGen Law, we assist clients throughout Alberta with family maintenance and support claims, estate litigation, estate administration disputes, executor matters, and will challenges. Whether you are considering a claim against an estate or responding to one, we are here to help.
This article is intended for informational purposes only and does not constitute legal advice. Individuals facing concerns about estate claims should seek professional advice tailored to their specific circumstances.