In Orde v. Foster (“Orde”),[1] the Honourable Justice Casullo awarded costs against Applicants who brought an Application against an Estate which was found meritless and was subsequently abandoned.
Background
Family
The litigation in Orde concerned the Estate of William Wayne Brown (the “Deceased”), who passed away in 2021.[2]
The Deceased was survived by various family members including his sons, Shannon Brown, Roger Orde, and Steve Orde. He was also survived by his niece, Christine Foster, and sister, Gail Brown, amongst others.[3]
The Estate Proceedings
The Deceased passed away with a Last Will and Testament dated January 24, 2020 (the “2020 Will”).[4]
In February 2022, the Deceased’s sons commenced an Application for Advice and Directions seeking a declaration that the 2020 Will was invalid on the grounds of undue influence and lack of testamentary capacity. What ensued was various interlocutory motions including the addition of parties and the limited appointment of Estate Trustees to liquidate the Deceased’s assets which totaled in or around $550,000 at the time of his passing.[5]
In April and May 2025, the Court heard a minimal evidentiary threshold motion brought by the Respondents, as well as the Applicants motion for further production of records pertaining to the Deceased.[6]
In August 2025, the Court granted the Respondents’ motion, finding that the Applicants had not met the minimum evidentiary threshold on the grounds that there was no evidence which, if accepted, would call into question the validity of the 2020 Will. The Court found that “Wayne did not lack the capacity to draft the 2020 Will and that the allegations of Christine’s undue influence over Wayne to her benefit were based solely on supposition and speculation”.[7]
In December 2025, the Applicants served their Notice of Abandonment. Accordingly, the Court was required to adjudicate the costs of the Application.[8]
Governing Costs Principles
Rule 38.08(3) of the Rules of Civil Procedure (the “Rules”),[9] provides that where an application has been abandoned, a respondent is entitled to their costs of the application, unless the court orders otherwise.[10]
Ultimately, the costs of a proceeding is an exercise of the Court’s discretion pursuant to section 131 of the Courts of Justice Act.[11] In exercising their discretion, they are to consider the relevant factors set out in rule 57.01(1) of the Rules, including the principle of indemnity, the amount of costs the unsuccessful party could reasonably expect to pay, the complexity of the proceeding, and the importance of the issues.[12]
As explained by the Ontario Court of Appeal in McGrath v. Joy,[13] the traditional approach of paying costs out of the estate was based on two policy considerations:
- the need to give effect to valid wills that reflect the intention of competent testators and
- the need to ensure that estates are properly administered.[14]
Where there are reasonable grounds to question the validity of a will, there is a public interest in determining those issues without burdening the parties with costs. Further, where litigation arises from the actions of the testator, it can be appropriate for the estate to bear the costs.[15]
In Orde, the Court noted that it must stand on guard to prevent litigation from depleting an estate, which is prejudicial to the ultimate beneficiaries. In essence, where public policy considerations are engaged, the losing party’s costs should be payable from the estate. If there are no public policy considerations, the challenger should bear their own legal costs.[16]
Analysis
The Parties’ cost positions
The Applicants submitted that their application was necessary because it arose from suspicious circumstances warranting the Court’s scrutiny. They further posited that they should be shielded from any cost penalties as they abandoned their claim at the earliest possible juncture.[17]
The Respondents, meanwhile, sought their substantial indemnity costs in the amount of $112,000 for the entirety of the litigation with all costs payable by the Applicants.[18]
The Judgment
The Court found that the Deceased’s actions did not cause the litigation to occur. Furthermore, the Will Challenge was not reasonable and there was nothing to ground the Applicants’ allegation of undue influence. The medical records of the Deceased which were introduced into evidence did not support any form of incapacity. In summary, Justice Cusullo found that “the Application was wholly unnecessary to ensure the proper administration of the Estate”.[19]
The Court noted three recent decisions, which were analogous where modest estates were wasted on unmeritorious litigation alleging incapacity and undue influence, and the losing applicant was ordered to pay costs.[20]
In summary, Justice Casullo had the following concluding remarks on the merits of the abandoned Application and the allocation of costs:
[54] The fact of the matter is that it is difficult to imagine a more ill-conceived will challenge. The Applicants’ unsubstantiated allegations have prolonged the administration of Wayne’s modest Estate. It would offend the principles of justice to allow their actions to deplete it any further.
[55] Not only are the Applicants disentitled to an award of costs, but they are also jointly and severally responsible for paying [the Respondent, Christine Foster’s] costs on a substantial indemnity basis in the amount of $80,000 plus disbursements. Christine bore the brunt of the litigation, absorbing all of the risk of preserving not only her interest in the Estate, but Gail’s and Kerrie’s as well.[21]
Concluding Comments
Orde serves as a reminder of the cost consequences that may flow from abandoning a meritless application against an Estate. In this regard, the Courts are equipped with Rule 38.08(3) and section 131 of the Courts of Justice Act to allocate costs in their own discretion.
—
[1] Orde v. Foster, 2026 ONSC 4090 (CanLII) (“Orde”).
[2] Orde at para 1.
[3] Orde at paras 12 – 21.
[4] Orde at paras 1 -3.
[5] Orde at para 3.
[6] Orde at para 4.
[7] Ibid.
[8] Orde at para 7.
[9] Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”).
[10] Ibid. at Rule 38.08(3).
[11] Courts of Justice Act, R.S.O. 1990, c. C.43.
[12] Rule 57.01(1) of the Rules.
[13] McGrath v. Joy, 2022 ONCA 119, 471 D.L.R. (4th) 211, at paras. 91-95.
[14] Ibid.
[15] Orde at para 39.
[16] Orde at paras 40 and 41.
[17] Orde at paras 31 – 36.
[18] Orde at paras 29 – 31.
[19] Orde at para 42.
[20] Orde at para 44, citing Fanelli v. Fanelli-Bruno, 2023 ONSC 6501; Issa v. Aiello, 2025 ONSC 5173 and Cissek v. Laszlo, 2026 ONSC 1493.
[21] Orde at paras 54 and 55.
Written by: Oliver O'Brien
Posted on: July 29, 2026
Categories: Commentary, WEL Newsletter
In Orde v. Foster (“Orde”),[1] the Honourable Justice Casullo awarded costs against Applicants who brought an Application against an Estate which was found meritless and was subsequently abandoned.
Background
Family
The litigation in Orde concerned the Estate of William Wayne Brown (the “Deceased”), who passed away in 2021.[2]
The Deceased was survived by various family members including his sons, Shannon Brown, Roger Orde, and Steve Orde. He was also survived by his niece, Christine Foster, and sister, Gail Brown, amongst others.[3]
The Estate Proceedings
The Deceased passed away with a Last Will and Testament dated January 24, 2020 (the “2020 Will”).[4]
In February 2022, the Deceased’s sons commenced an Application for Advice and Directions seeking a declaration that the 2020 Will was invalid on the grounds of undue influence and lack of testamentary capacity. What ensued was various interlocutory motions including the addition of parties and the limited appointment of Estate Trustees to liquidate the Deceased’s assets which totaled in or around $550,000 at the time of his passing.[5]
In April and May 2025, the Court heard a minimal evidentiary threshold motion brought by the Respondents, as well as the Applicants motion for further production of records pertaining to the Deceased.[6]
In August 2025, the Court granted the Respondents’ motion, finding that the Applicants had not met the minimum evidentiary threshold on the grounds that there was no evidence which, if accepted, would call into question the validity of the 2020 Will. The Court found that “Wayne did not lack the capacity to draft the 2020 Will and that the allegations of Christine’s undue influence over Wayne to her benefit were based solely on supposition and speculation”.[7]
In December 2025, the Applicants served their Notice of Abandonment. Accordingly, the Court was required to adjudicate the costs of the Application.[8]
Governing Costs Principles
Rule 38.08(3) of the Rules of Civil Procedure (the “Rules”),[9] provides that where an application has been abandoned, a respondent is entitled to their costs of the application, unless the court orders otherwise.[10]
Ultimately, the costs of a proceeding is an exercise of the Court’s discretion pursuant to section 131 of the Courts of Justice Act.[11] In exercising their discretion, they are to consider the relevant factors set out in rule 57.01(1) of the Rules, including the principle of indemnity, the amount of costs the unsuccessful party could reasonably expect to pay, the complexity of the proceeding, and the importance of the issues.[12]
As explained by the Ontario Court of Appeal in McGrath v. Joy,[13] the traditional approach of paying costs out of the estate was based on two policy considerations:
Where there are reasonable grounds to question the validity of a will, there is a public interest in determining those issues without burdening the parties with costs. Further, where litigation arises from the actions of the testator, it can be appropriate for the estate to bear the costs.[15]
In Orde, the Court noted that it must stand on guard to prevent litigation from depleting an estate, which is prejudicial to the ultimate beneficiaries. In essence, where public policy considerations are engaged, the losing party’s costs should be payable from the estate. If there are no public policy considerations, the challenger should bear their own legal costs.[16]
Analysis
The Parties’ cost positions
The Applicants submitted that their application was necessary because it arose from suspicious circumstances warranting the Court’s scrutiny. They further posited that they should be shielded from any cost penalties as they abandoned their claim at the earliest possible juncture.[17]
The Respondents, meanwhile, sought their substantial indemnity costs in the amount of $112,000 for the entirety of the litigation with all costs payable by the Applicants.[18]
The Judgment
The Court found that the Deceased’s actions did not cause the litigation to occur. Furthermore, the Will Challenge was not reasonable and there was nothing to ground the Applicants’ allegation of undue influence. The medical records of the Deceased which were introduced into evidence did not support any form of incapacity. In summary, Justice Cusullo found that “the Application was wholly unnecessary to ensure the proper administration of the Estate”.[19]
The Court noted three recent decisions, which were analogous where modest estates were wasted on unmeritorious litigation alleging incapacity and undue influence, and the losing applicant was ordered to pay costs.[20]
In summary, Justice Casullo had the following concluding remarks on the merits of the abandoned Application and the allocation of costs:
[54] The fact of the matter is that it is difficult to imagine a more ill-conceived will challenge. The Applicants’ unsubstantiated allegations have prolonged the administration of Wayne’s modest Estate. It would offend the principles of justice to allow their actions to deplete it any further.
[55] Not only are the Applicants disentitled to an award of costs, but they are also jointly and severally responsible for paying [the Respondent, Christine Foster’s] costs on a substantial indemnity basis in the amount of $80,000 plus disbursements. Christine bore the brunt of the litigation, absorbing all of the risk of preserving not only her interest in the Estate, but Gail’s and Kerrie’s as well.[21]
Concluding Comments
Orde serves as a reminder of the cost consequences that may flow from abandoning a meritless application against an Estate. In this regard, the Courts are equipped with Rule 38.08(3) and section 131 of the Courts of Justice Act to allocate costs in their own discretion.
—
[1] Orde v. Foster, 2026 ONSC 4090 (CanLII) (“Orde”).
[2] Orde at para 1.
[3] Orde at paras 12 – 21.
[4] Orde at paras 1 -3.
[5] Orde at para 3.
[6] Orde at para 4.
[7] Ibid.
[8] Orde at para 7.
[9] Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”).
[10] Ibid. at Rule 38.08(3).
[11] Courts of Justice Act, R.S.O. 1990, c. C.43.
[12] Rule 57.01(1) of the Rules.
[13] McGrath v. Joy, 2022 ONCA 119, 471 D.L.R. (4th) 211, at paras. 91-95.
[14] Ibid.
[15] Orde at para 39.
[16] Orde at paras 40 and 41.
[17] Orde at paras 31 – 36.
[18] Orde at paras 29 – 31.
[19] Orde at para 42.
[20] Orde at para 44, citing Fanelli v. Fanelli-Bruno, 2023 ONSC 6501; Issa v. Aiello, 2025 ONSC 5173 and Cissek v. Laszlo, 2026 ONSC 1493.
[21] Orde at paras 54 and 55.
Author