The court, in a recent Ontario case Graham v Graham, has reiterated the principle that the payment of legal costs for litigation in relation to power of attorney issues will be determined on the basis of whether the litigation benefited the incapable person and on the basis of success at the end of the litigation.

The Graham case involved a legal challenge of to the validity of a will and power of attorney for property executed by a father (who subsequently passed away) during his first meeting with a lawyer in hospital.

The son who was designated the power of attorney for property for the father transferred the father’s home to himself several days before the father died.

Another son brought a successful Application for a declaration that the Will and power of attorney were invalid and for an order setting aside the transfer of the father’s home to the power of attorney son.

The court determined that a substantial portion of the legal costs incurred by the son who challenged the will and power of attorney were to be paid personally by the son who had been designated the power of attorney for father.

The court also ordered that the remaining balance of the legal costs not ordered paid by the son who had been designated the power of attorney for father were to be paid by the estate of the deceased father.

Barrie Hayes, Partner