One of the most common questions people ask before starting estate litigation is whether the estate will pay everyone's legal fees.
Many people are surprised to learn that modern Alberta courts do not automatically require an estate to bear the cost of a family dispute. In some circumstances, an unsuccessful litigant may be personally responsible for paying not only their own legal fees but also a portion of the other side's costs.
The Alberta Court of Appeal recently addressed this issue in Mast v. Mast, 2026 ABCA 151, providing valuable guidance on costs awards in estate litigation, settlement offers, and when courts may require a party to personally bear the financial consequences of unsuccessful claims.
The Background
The dispute arose from litigation involving the Estate of Johannes Mast.
Two executors, Trevor Mast and Ronald Mast, had successfully appealed an earlier decision concerning the interpretation of provisions in the deceased's will and their obligations as executors. Following that successful appeal, the respondent withdrew a remaining summary judgment application, leaving the Court to determine who should pay the legal costs generated by the proceedings.
The executors sought substantial costs, including solicitor-client costs or, alternatively, enhanced costs at twice the normal rate.
The Court ultimately considered several important questions:
- When are enhanced costs appropriate?
- Do settlement offers automatically justify higher costs awards?
- Can the Court of Appeal revisit costs awarded in the lower court?
- Should costs come from the estate or from the individual litigant?
Estate Litigation Does Not Automatically Mean the Estate Pays
Historically, courts were often more willing to order estate-related legal fees to be paid from estate assets.
However, modern courts have increasingly recognized that not every family dispute should reduce the inheritance available to beneficiaries.
In Mast, the Court reinforced that there is no automatic presumption that legal costs in estate litigation should be paid from the estate.
Instead, courts examine the circumstances of each case and determine who should bear responsibility for the costs incurred.
This distinction is important because individuals sometimes commence estate claims assuming the estate will absorb the financial consequences regardless of the outcome. That assumption can be risky.
When Settlement Offers Matter
The decision also provides a useful lesson regarding settlement offers.
Before an Estate Case Conference, the executors had made a Calderbank offer, a form of settlement proposal that can sometimes influence a later costs award.
However, after the litigation evolved, several of the issues addressed by the offer were withdrawn, abandoned, or no longer relevant.
As a result, the Court gave the offer little weight when deciding costs.
The lesson is that not every settlement offer will strengthen a party's position on costs. Courts focus on whether the offer meaningfully relates to the issues that were ultimately decided.
A settlement proposal that addresses claims that later disappear from the litigation may have limited value when costs are assessed.
Enhanced Costs Remain Exceptional
The executors argued that the respondent's conduct justified elevated costs.
The Court disagreed.
In doing so, the Court reaffirmed an important principle: solicitor-client costs are exceptional.
They are typically reserved for conduct that is:
- Reprehensible;
- Scandalous;
- Outrageous; or
- A serious abuse of the litigation process.
Merely losing a case, pursuing an unsuccessful argument, or engaging in hard-fought litigation will not usually justify solicitor-client costs.
The Court concluded that the conduct alleged in Mast did not meet that high threshold and awarded standard Schedule C costs instead.
For litigants, this serves as a reminder that enhanced costs are the exception rather than the rule.
The Court of Appeal Can Revisit Trial Costs
One particularly significant aspect of the decision is the Court's discussion of its authority over costs from lower court proceedings.
The Court confirmed that when an appeal changes the result of a case, it may also revisit costs awarded at the trial level.
This makes practical sense.
If a party wins at trial and receives a costs award, but that result is later overturned on appeal, the foundation for the original costs award may no longer exist.
In appropriate circumstances, appellate courts can adjust the costs consequences to reflect the ultimate outcome of the litigation.
This principle can have significant financial consequences for parties involved in lengthy estate disputes.
Personal Responsibility for Costs
Perhaps the most important takeaway from the decision is the Court's approach to personal responsibility.
The executors asked the Court to direct that costs be paid from funds held for the respondent's benefit within the estate.
The Court declined to make that order.
Instead, it required the respondent to pay the costs personally.
The Court noted that there was no evidence suggesting the respondent would be unable to satisfy a costs award and no basis for directing payment out of estate assets.
This reinforces an important reality of estate litigation:
Not every dispute involving an estate is funded by the estate.
Where a party advances claims unsuccessfully, they may face personal financial exposure.
Practical Lessons for Alberta Families
The decision highlights several important points for anyone considering estate litigation:
Carefully Assess the Strength of Your Claim
Estate disputes can be emotionally charged. However, legal decisions should be based on the merits of the claim and the potential costs exposure.
Settlement Offers Matter, But Context Matters More
A settlement proposal may affect costs if it remains relevant to the issues ultimately decided. Not all offers will carry the same weight.
Solicitor-Client Costs Are Rare
Courts reserve enhanced costs for exceptional circumstances involving serious litigation misconduct.
Costs May Follow the Result
An unsuccessful litigant may be required to pay costs personally, even where the dispute concerns an estate.
Appeals Can Change Costs Outcomes
A successful appeal may alter not only the substantive result but also the costs consequences from earlier stages of the litigation.
The Bottom Line
Mast v. Mast serves as an important reminder that estate litigation carries real financial risk. While family disputes often arise from genuine disagreements about a loved one's wishes, courts increasingly expect parties to carefully assess their positions, participate meaningfully in settlement discussions, and recognize that unsuccessful litigation may result in personal costs consequences.
For beneficiaries, executors, and family members involved in estate disputes, understanding potential costs exposure is just as important as understanding the underlying legal claims.
MerGen Law is Here to Help You
At MerGen Law, we assist clients throughout Alberta with estate litigation, executor disputes, will interpretation matters, beneficiary claims, and appeals. Obtaining legal advice early can help parties evaluate both the strengths of their case and the potential financial risks associated with litigation.
This article is intended for informational purposes only and does not constitute legal advice. Individuals facing concerns about wills and estates should seek professional advice tailored to their specific circumstances.