In Schickedanz v. Schickedanz, 2026 ONSC 297, (“Schickedanz”), the Superior Court of Justice provided a detailed costs endorsement arising from an eleven‑day trial concerning three applications involving the estate of Elma (“the Estate”). Schickedanz is a clear reminder that estate disputes follow the modern “loser pays” approach, and parties cannot treat an estate as an “ATM” to fund litigation.

Background

Elma (the “Deceased”) passed away on December 12, 2019, and was survived by her four children; Charlotte (the “Applicant”), Arthur, Manfred, Gerhard and Waldemar (the “Respondents”). Prior to the Deceased’s death, the Applicant alleged that the Deceased purportedly executed a holograph codicil (the “Codicil”), providing the Deceased’s home, valued at approximately $23 million, to the Applicant.[1]

Schickedanz involved three applications that were tried together:

1. The Applicant’s Application to validate the Codicil by the Deceased (the “Codicil Application”);
2. The Respondents’ application declaring certain investment accounts, valued at about $4 million, to be held in trust by the Applicant for the Estate (the “Investment Account Application”); and
3. The Applicant’s counter application for compensation for the management of those accounts (the “Management Fee Application”).[2]

Following trial, the court found the Codicil invalid due to suspicious circumstances and the Deceased’s lack of testamentary capacity at the time of execution. The court also granted the Respondent’s relief sought in the Investment Account Application. Lastly, the Applicant withdrew her Management Fee Application, leaving only the question of costs.[3]

The Respondents then sought costs of $2,641,389.19 for the Codicil and Investment Account Applications, plus $17,768.99 for the withdrawn Management Fee Application.[4] The Applicant argued that her costs should’ve been borne from the Estate and that the Respondent’s cost figures were excessive. The Applicant sought $906,040.16 from the Estate for the Codicil Application and the costs that resulted from an adjournment motion brought by the Respondents.[5]

Analysis

The Applicant argued that the costs for the Codicil Application should’ve been borne by the Estate, as the uncertainty surrounding the Codicil was a result of the Deceased’s actions, and the proceeding was necessary for the proper administration of the Estate.[6] The Court rejected this argument, and noted the trial findings, which were as follows:

1. The Codicil solely benefited the Applicant;
2. The Applicant played an instrumental role in procuring the Codicil;
3. The Codicil was procured in secrecy; and
4. There were suspicious circumstances tied to the Deceased’s capacity.[7]

The Court asserted that ordering the Estate to cover her costs in those circumstances would run counter to public policy, effectively creating a no‑risk environment for those advancing tainted testamentary documents. On this basis, the Applicant was ordered to bear her own costs regarding the Codicil and Investment Account Applications.[8]

Turning to the Respondent’s costs, the court agreed that the case was complex, which included extensive discovery, experts, more than 20 examinations, and numerous conferences and motions. However, the court still scrutinized the quantum of costs put forward by the Respondents.[9]

The court flagged concerns regarding the Respondent’s costs including large variances between the draft and final bills, excessive time on drafting affidavits (97.5 hours on two affidavits), and hourly rates significantly higher than the Applicant’s counsel.[10]

The court reiterated that awards are based on what is objectively reasonable for the losing party to pay in the circumstance, rather than what the winner had actually spent.[11]

The court addressed the settlement offers provided by the Respondents in January of 2022 and 2024. In the Codicil Application, the Court asserted that the results were at least as favourable as the 2024 offer and on the Investment Accounts, the 2024 offer was matched, if not better. On this basis, the court held the Respondents were presumptively entitled to costs on a partial indemnity scale until January 24, 2024, and substantial indemnity thereafter.[12]

For the Applicant’s withdrawn Management Fee Application, Rule 38.03(3) applied, which provides that a Respondent is entitled to costs on abandonment unless the court orders otherwise, and no public policy exceptions applies.[13]

Balancing all factors, the court ordered that the Applicant must pay $2,200,000.00 for the Codicil and Investment-Account proceedings (including the adjournment motions) and $17,768.69 for the withdrawn Management Fee Application.[14]

Concluding Remarks

Schickedanz highlights the court’s reluctance to allow estate funds to cover litigation costs when suspicious circumstances are present.

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[1] Schickedanz v. Schickedanz, 2026 ONSC 297 (“Schickendanz”)

[2] Ibid at para 1

[3] Ibid at para 1

[4] Ibid at para 2

[5] Ibid at para 2

[6] Ibid at para 6

[7] Ibid at para 6

[8] Ibid at para 10

[9] Ibid at para 12

[10] Ibid at para 10

[11] Ibid at para 22

[12] Ibid at para 24

[13] Ibid at para 35

[14] Ibid at para 39