Family, Estates & Trusts 



Executor Opposing Wills Variation Application Denied Costs

While an executor is generally reimbursed in full by the estate for all costs incurred in the fulfilment of that role, an executor cannot ordinarily recover from the estate legal costs flowing from his or her opposition of a wills variation application.

For example, in Chan v. Lee Estate, 2004 BCCA 644, the plaintiff sisters brought a wills variation application to vary their father’s will over the objections of the defendant brothers who were both executors and beneficiaries under their father’s will. The defendant brothers were substantially favoured by their father’s will and strenuously opposed their sisters’ application. The sisters’ application to vary the will was successful, and they sought costs against the brothers personally. The brothers’ position was that costs to the sisters should be paid out of the estate.

Entitlement to costs incurred in performing duties as executor

An executor is a trustee, and accordingly owes a fiduciary duty to the beneficiaries of an estate. The law requires an executor to remain neutral. An executor is only entitled to costs from the estate where those costs were incurred in the execution of his or her duties as an executor. When he or she incurs costs wearing the other hat – that of a beneficiary – the neutrality is lost, and costs ordinarily do not come out of the estate (though there are rare exceptions).

Executors attacking entitlement of beneficiaries denied costs

In the Chan reasons on costs, Mr. Justice Hood concluded that the defendant brothers were personally liable for the sisters’ costs, commenting on the brothers’ involvement in the wills variation proceedings as follows (at para. 8):

I observe also that at trial it became very clear to me early on, and not just from their Statement of Defence, that the Defendant brothers were attacking the entitlement of the sisters and defending their own inheritance as beneficiaries and not as Executors. There was nothing neutral or unbiased about the positions maintained by them. Thus, in my view, as unsuccessful parties, the Defendant brothers own costs, and those which they must pay the Plaintiffs, are payable by them personally. These costs are not recoverable from the Estate.

Mr. Justice Hood found that it would be unjust to permit the defendants to take a position qua beneficiary at trial, and to then have their costs paid out of the estate when they lost, thus reducing the successful plaintiffs’ ultimate distribution from the estate.

The Court of Appeal upheld the denial of costs from the estate to the executor-beneficiaries.

Bottom line on executor’s legal costs following opposition of a wills variation application

An executor is only entitled to costs from the estate where those costs were incurred in the execution of his or her duties as an executor. The list of things that an executor may properly do in their role as executor does not include opposing a wills variation application. Where the executor is also a beneficiary and enters the fray of a wills variation application, his or her costs do not ordinarily come out of the estate.

Have questions about a topic?

Onyx Law Group represents clients in family law, estate and trust litigation, estate planning and probate matters. Consult with our experienced team at 
(604) 900-2538


(604) 900-2538

Contact Us
  • We were made to feel valued and heard. Integrity, competence and a passion for justice definitely describes Onyx. They are also caring, compassionate and have a good sense of humour.

  • Thanks to Onyx’s straightforward approach, this litigation was resolved with the best outcome for myself and my children. Although this ordeal was emotionally trying, we can get on with our lives, without added worry and stress.

  • I chose the right law firm and I know our future is on the proper course because of Onyx. I wouldn’t hesitate to tell anyone who needs good legal representation to take my words to heart.

We will find the best way to help you


650 West Georgia Street
Suite 1215 - The Scotia Tower
Vancouver, BC  V6B 4N9

T (604) 900 2538
F (604) 900 2539

New Westminster

26 Fourth Street
Suite 100
New Westminster, BC  V3L 5M4

T (604) 900 2538
F (604) 900 2539


1631 Dickson Avenue
Suite 1100
Kelowna, BC  V1Y 0B5

T (604) 900-2538
F (604) 900-2539

The information on this website is for general information purposes only. Nothing on this site should be considered legal, financial, tax, medical, or any other professional advice.

Powered by GLP Marketing

Copyright © Onyx Law All Rights Reserved