In Shapiro v. Shapiro^[1], the Ontario Superior Court of Justice considered the appropriate costs consequences following two related estate proceedings: a failed Will challenge and a partially successful dependant support claim. The decision provides a useful application of the modern approach to costs in estate litigation following the Court of Appeal’s decision in McGrath v. Joy^[2], reaffirming that public policy considerations do not automatically entitle unsuccessful litigants to have their costs paid from the estate.

Background

The litigation arose following the death of Carol-Sue Shapiro.

Her October 2018 Wills significantly altered her previous estate plan. The residue of her estate, valued at approximately $7 million, was left entirely to her son, Michael.^[3] Her husband, Jack, received a substantially reduced benefit, while her daughter, Tracy, was effectively disinherited.^[4] Jack and Tracy challenged the validity of the Wills, alleging that Michael and his wife had exercised undue influence by misleading the deceased regarding Jack’s financial circumstances and Tracy’s husband.

The Court dismissed the Will challenge, concluding that the objectors had failed to establish undue influence on a balance of probabilities.^[5] Although the deceased may have held some mistaken beliefs, the evidence demonstrated that she was independent, strong-willed, and had long-standing concerns regarding the preservation of the family’s assets. The Court found that the changes to her testamentary plan reflected her own evolving intentions rather than manipulation by Michael.

The second proceeding involved Jack’s claim for dependant support under the Succession Law Reform Act. On that claim, Jack was partially successful. The Court concluded that the deceased had failed to make adequate provision for her spouse and ordered that title to the matrimonial condominium be transferred to him in addition to the $250,000 bequest provided under the Will.^[6]

The Costs Issue

Following the merits decisions, the parties advanced competing positions on costs.

Michael sought approximately $298,000 in substantial indemnity costs for successfully defending the Will challenge, arguing that the allegations against him were unsupported and unnecessarily prolonged the litigation.^[7]

Jack argued that the litigation had been caused by the deceased’s own conduct – specifically, her departure from previous testamentary intentions and her failure to make adequate provision for him – and that, on public policy grounds, his costs should be paid from the estate on a full indemnity basis.^[8] In the alternative, he submitted that there should be no costs order because the overall result was mixed.^[9]

The Court’s Analysis

Justice Breen began by reaffirming the analytical framework established by the Court of Appeal in McGrath.^[10] The first question is whether public policy considerations are engaged. If they are, the Court retains discretion to depart from the ordinary rule that costs follow the event. If they are not, the Court applies the ordinary costs principles under section 131 of the Courts of Justice Act and Rule 57.01.

The Court concluded that public policy considerations applied to the dependant support claim because the deceased’s estate plan failed to make adequate provision for her spouse, making litigation reasonably foreseeable.^[11] However, those considerations did not extend to the Will challenge in the same way. The Will challenge was an adversarial dispute alleging undue influence and testamentary fraud, and Michael was entirely successful in defending the validity of the Wills.^[12]

Importantly, the Court emphasized that even where public policy considerations are engaged, they do not automatically justify full indemnity costs from the estate.^[13] Success, reasonableness, and proportionality remain central considerations.

The Court also rejected Michael’s request for substantial indemnity costs, reiterating that such awards are reserved for exceptional cases involving reprehensible conduct or abuse of process.^[14] Although the litigation was vigorously contested, neither party’s conduct warranted elevated costs. Likewise, the parties’ settlement offers did not affect the outcome because no party achieved a result more favourable than its offer.^[15]

Costs Award

Applying ordinary partial indemnity principles, while accounting for the complexity of the proceedings and reasonable local rates, the Court awarded^[16]:

• $200,000 to Michael for successfully defending the Will challenge;
• $125,000 to Jack for the dependant support proceeding.

Recognizing the public policy considerations underlying the dependant support claim, the Court directed that 40% of Jack’s costs ($50,000) be paid from the estate.^[17] The remaining $75,000 was recoverable personally against Michael and was set off against Michael’s $200,000 costs award, resulting in a net payment of $125,000 from Jack to Michael.^[18]

Takeaways

Shapiro reinforces that the modern approach to costs in estate litigation remains guided by McGrath. Courts must first determine whether public policy considerations are engaged before deciding whether to depart from the ordinary rule that costs follow the event. Even where public policy applies, it does not automatically entitle a party to recover its costs from the estate. Success, proportionality, and fairness remain central considerations, and courts retain broad discretion to fashion costs awards that reflect the unique outcome of each claim.

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[1] 2026 ONSC 3834 [Shapiro].

[2] 2022 ONCA 119 [McGrath].

[3] Shapiro, supra note 1 at para 1.

[4] Ibid.

[5] Ibid at paras 4, 5.

[6] Ibid at paras 6, 7.

[7] Ibid at para 8.

[8] Ibid at para 10.

[9] Ibid at para 11.

[10] Ibid at para 15-17.

[11] Ibid at para 19.

[12] Ibid at para 20.

[13] Ibid at para 21.

[14] Ibid at paras 23, 24.

[15] Ibid at para 25.

[16] Ibid at paras 32, 36.

[17] Ibid at para 37.

[18] Ibid at para 39.