Court Awards Substantial Indemnity Costs For Reprehensible Litigation Behavior
In Issa v. Aiello[1], 2025 ONSC 5173, the court ordered substantial indemnity costs against the Applicant for an Application brought against the Respondent challenging the validity of their mother, Luisa’s Last Will and Testament (the “Will Challenge”). The court’s findings, underscore the inclination to award substantial indemnity costs in applications involving baseless claims.
Background
On January 20, 2012, the Deceased executed a Last Will and Testament (the “2012 will”) that provided her estate to her six children, including the Applicant and the Respondent. The six beneficiaries did not receive equal shares of the Estate.[2]
On July 8, 2016, the Deceased executed a Last Will and Testament (the “2016 Will”) which provided the Respondent with a 90% share of her estate and the Applicant with the remaining 10% share. The Applicant commenced the Will Challenge alleging, amongst other things, that the 2016 Will should be set aside on the basis that the Deceased was unduly influenced by the Respondent, and lacked the capacity to execute the 2016 Will.[3]
In the Will Challenge, the Applicant failed to submit any medical evidence providing a diagnosis of Dementia or any type of medical condition that would have affected the Deceased’s capacity to execute the 2016 Will. The Applicant also made a “scandalous assertion, without any supporting evidence, that the [Respondent] financially exploited the [Deceased]” and unduly influenced the Deceased to provide a larger share of her estate to the Respondent.[4]
Due to the absence of evidence supporting the Applicant’s claims, the court dismissed the Will Challenge and awarded costs to the Respondent. The Respondent sought costs on a substantial indemnity basis in the amount of $70,000.[5]
The court concluded that the Respondent was entitled to her costs on a substantial indemnity basis, in the amount of $55,000. This decision was based on two reasons.[6]
First, the court found that the Applicant engaged in “reprehensible litigation behaviour” by rejecting several offers to settle made by the Respondent during the Will Challenge.[7] The Respondent initially offered to settle if the Applicant paid $10,000 in costs and both parties withdrew from litigation. The following year, the Respondent made a similar offer, proposing that if the Applicant paid $20,000 in costs, both parties would abandon the Will Challenge.[8]
Second, the court also found that the Applicant’s conduct was reprehensible because she failed to provide any evidence supporting her claims of undue influence or financial exploitation.[9] The court referenced, Fanelli v. Fanelli-Bruno 2023 ONSC 6501, and stated the following:
“Alleging fraud and undue influence with no relevant evidence constitutes reprehensible litigation behaviour” [10]
As a result, the court found it reasonable to award costs to the Respondent. Additionally, the court determined that the time spent by the Respondent’s counsel was reasonable “having regard to the serious and scandalous allegations made by [the Applicant]”.[11]
Concluding remarks
This decision serves as a cautionary tale for litigants commencing a will challenge without supporting evidence. The decision emphasizes that the burden of proof lies with the challenger, who must present compelling evidence to substantiate claims of undue influence, lack of testamentary capacity, or other grounds for invalidating a will. Absent such evidence, courts are unlikely to entertain these challenges, thereby protecting the integrity of the testator’s intentions.
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[1] Issa v. Aiello, 2025 ONSC 5173 (“Issa’’)
[2] Issa v. Aiello, 2025 ONSC 4055 at para 8 (“ONSC 4055”)
[3] ONSC 4055 at para 8
[4] Issa at para 7
[5] Ibid at para 3
[6] Ibid at para 9
[7] Ibid at para 6
[8] Ibid at para 4
[9] Ibid at para 5
[10] Ibid at para 6
[11] Ibid at para 7
Written by: Gabriella Banhara
Posted on: October 1, 2025
Categories: Commentary, WEL Newsletter
In Issa v. Aiello[1], 2025 ONSC 5173, the court ordered substantial indemnity costs against the Applicant for an Application brought against the Respondent challenging the validity of their mother, Luisa’s Last Will and Testament (the “Will Challenge”). The court’s findings, underscore the inclination to award substantial indemnity costs in applications involving baseless claims.
Background
On January 20, 2012, the Deceased executed a Last Will and Testament (the “2012 will”) that provided her estate to her six children, including the Applicant and the Respondent. The six beneficiaries did not receive equal shares of the Estate.[2]
On July 8, 2016, the Deceased executed a Last Will and Testament (the “2016 Will”) which provided the Respondent with a 90% share of her estate and the Applicant with the remaining 10% share. The Applicant commenced the Will Challenge alleging, amongst other things, that the 2016 Will should be set aside on the basis that the Deceased was unduly influenced by the Respondent, and lacked the capacity to execute the 2016 Will.[3]
In the Will Challenge, the Applicant failed to submit any medical evidence providing a diagnosis of Dementia or any type of medical condition that would have affected the Deceased’s capacity to execute the 2016 Will. The Applicant also made a “scandalous assertion, without any supporting evidence, that the [Respondent] financially exploited the [Deceased]” and unduly influenced the Deceased to provide a larger share of her estate to the Respondent.[4]
Due to the absence of evidence supporting the Applicant’s claims, the court dismissed the Will Challenge and awarded costs to the Respondent. The Respondent sought costs on a substantial indemnity basis in the amount of $70,000.[5]
The court concluded that the Respondent was entitled to her costs on a substantial indemnity basis, in the amount of $55,000. This decision was based on two reasons.[6]
First, the court found that the Applicant engaged in “reprehensible litigation behaviour” by rejecting several offers to settle made by the Respondent during the Will Challenge.[7] The Respondent initially offered to settle if the Applicant paid $10,000 in costs and both parties withdrew from litigation. The following year, the Respondent made a similar offer, proposing that if the Applicant paid $20,000 in costs, both parties would abandon the Will Challenge.[8]
Second, the court also found that the Applicant’s conduct was reprehensible because she failed to provide any evidence supporting her claims of undue influence or financial exploitation.[9] The court referenced, Fanelli v. Fanelli-Bruno 2023 ONSC 6501, and stated the following:
“Alleging fraud and undue influence with no relevant evidence constitutes reprehensible litigation behaviour” [10]
As a result, the court found it reasonable to award costs to the Respondent. Additionally, the court determined that the time spent by the Respondent’s counsel was reasonable “having regard to the serious and scandalous allegations made by [the Applicant]”.[11]
Concluding remarks
This decision serves as a cautionary tale for litigants commencing a will challenge without supporting evidence. The decision emphasizes that the burden of proof lies with the challenger, who must present compelling evidence to substantiate claims of undue influence, lack of testamentary capacity, or other grounds for invalidating a will. Absent such evidence, courts are unlikely to entertain these challenges, thereby protecting the integrity of the testator’s intentions.
—
[1] Issa v. Aiello, 2025 ONSC 5173 (“Issa’’)
[2] Issa v. Aiello, 2025 ONSC 4055 at para 8 (“ONSC 4055”)
[3] ONSC 4055 at para 8
[4] Issa at para 7
[5] Ibid at para 3
[6] Ibid at para 9
[7] Ibid at para 6
[8] Ibid at para 4
[9] Ibid at para 5
[10] Ibid at para 6
[11] Ibid at para 7
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