It is not uncommon for family members to feel surprised, hurt, or suspicious after reading a loved one’s will after they have passed. A child may believe that a parent was incapable of making the will, or that another family member pressured them into changing it. Those concerns can be serious. However, as discussed in a recent estate law decision, Dhillon Estate (Re), 2026 BCSC 597 (“Dhillon”), suspicion that the will might not have been valid alone is not enough, and there may be costs consequences that arise depending on the reasonableness of the challenge.
In Dhillon, certain of the deceased’s children filed a notice of dispute in respect of the deceased’s Will but withdrew their opposition to the grant of probate application in the months leading up to the trial of that issue. The deceased’s other children argued that the claimants had improperly filed the notice of dispute, making unsupported allegations that caused unnecessary expense to the estate.
Generally, where allegations of lack of capacity or undue influence are raised, the executor will have a duty to prove the will in solemn form. That process can require evidence about the circumstances in which the will was prepared and signed. For example, the court may consider the evidence of the lawyer who prepared the will, the witnesses to the will, medical evidence, and other facts showing whether the will-maker understood what they were doing.[1] Those expenses may reduce what is ultimately available to beneficiaries, even before the Court decides whether a challenger should personally pay costs.
In Dhillon, the Court noted that when such allegations are made, the executor has a duty to prove the will in solemn form (para 41). This is the case even when such allegations are later withdrawn, which can lead to unnecessary expenses for the estate.
The Dhillon decision also reinforces that the existence of a will challenge does not mean that all parties’ costs will automatically be paid from the estate in relation to that proceeding. That result was more common in prior case law, and parties sometimes assume that will be the result when they are considering a will challenge. It is not, however, the modern approach to estate litigation.
The Court in Dhillon relied on the principles summarized in Leung v. Chang, 2014 BCSC 1243, which distinguish between cases where estate-funded costs are appropriate and cases that are better understood as ordinary adversarial litigation (para. 42). If the will-maker’s own conduct, or confusion surrounding the testamentary documents, caused the litigation, the costs of all parties may generally be paid from the estate. Similarly, if the will challenge was reasonable, based on some evidence of suspicious circumstances surrounding the preparation of the will, the unsuccessful challenger may not be ordered to pay costs personally even if their challenge was unsuccessful.
The Court further emphasized that a will challenge should have a reasonable basis to be brought (paras 48-55). If not, costs may follow the event, and the claimant will likely be ordered to pay the costs of the challenge.
In this case, the Court determined that the claimants’ challenge to the Will was not reasonable. The claimants had disputed the validity of the Will on the basis of alleged undue influence and lack of testamentary capacity. They later withdrew those allegations before the scheduled trial (paras. 49–50). The Court inferred from that withdrawal that, after searching for evidence to support their suspicions, the claimants had come up short (para. 50).
In particular, the Court found that, once the claimants had received the drafting lawyer’s file, they should have reconsidered their allegations and withdrawn them (para. 51). Instead, they continued to advance allegations of incapacity and undue influence despite having no evidence beyond their own suspicions (paras. 53–54). The Court held that a finding that there was a triable issue did not, by itself, make the challenge reasonable (para. 53).
The Court found that costs were appropriate against the claimants but needed to determine whether those costs should be assessed as special costs.
Serious Allegations Require Evidence, and Special Costs May Be Ordered for Unreasonable Conduct
Allegations of undue influence and lack of capacity are serious. They can affect the reputation of family members, lawyers, and others involved in the will-making process. Courts therefore expect those allegations to be supported by evidence.
Courts may consider special costs where a party pursues meritless claims, is reckless with the truth, makes the litigation more difficult than necessary, or advances serious allegations without a proper evidentiary basis. Courts have often found that unsubstantiated allegations of undue influence can justify special costs.
In Dhillon, the Court found that the claimants pursued a position that they ought to have known early in the proceeding lacked merit. Their conduct was found to be reprehensible, and the beneficiaries were entitled to special costs against the claimants. This was the case even though the claimants withdrew their notice of dispute before trial.
Practical Takeaways
The main lesson from Dhillon is that a party seeking to challenge the validity of a will by filing a notice of dispute should keep in mind that costs consequences against them could result if the Court finds the claim was unreasonably brought without a proper evidential foundation.
Filing a notice of dispute requires an $80 Supreme Court registry fee, plus a $7 electronic-filing fee if filed through Court Services Online. But the immediate filing cost may be minor compared with the legal and evidentiary expenses that the notice can trigger for the estate, and the potential costs award against an unsuccessful challenger.[2] For family members considering a challenge, the case is a reminder to get legal advice early and carefully assess whether there is actual evidence of lack of capacity or undue influence. These serious allegations should not be made lightly.