Court File and Parties
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Elizabeth Margrit Laszlo Cissek
Applicant
– and –
Ilona Maria Laszlo, in her personal capacity, and in her capacity as Estate Trustee for the Estate of Charles Laszlo
Respondent
Rick Bickhram, for the Applicant
Elizabeth A. Papp, for the Respondent
HEARD: In Writing
COSTS ENDORSEMENT
1The applicant, Elizabeth Margrit Laszlo Cissek, brought a motion pursuant to r. 75.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 seeking directions regarding the validity of the 2024 Last Will and Testament (the “Last Will”) of her late father, Charles Laszlo, and for directions to advance the litigation. She requested a trial timetable and sought orders requiring the production of Mr. Laszlo’s medical and financial records. The respondent, Ms. Laszlo, is the deceased’s wife.
2Ms. Cissek challenged the Last Will on the basis of testamentary capacity, suspicious circumstances, and undue influence.
3To succeed on the motion, Ms. Cissek needed to adduce some evidence which, if accepted, would call into question the validity of the Last Will.
4In a decision reported at 2025 ONSC 7264, I found that Ms. Cissek had not met her evidential burden. Ms. Cissek did not provide any personal observations of her father because she did not visit him or observe him on Facetime in the days leading to his execution of the Last Will or in the months leading to his death. Instead, she relied on medical records that described the deceased as medicated but alert, and on a witness’ incomplete account of Mr. Laszlo’s condition. Consequently, Ms. Cissek did not adduce or point to some evidence which, if accepted, would call into question the deceased’s testamentary capacity.
5Although Ms. Cissek did adduce some evidence of suspicious circumstances and undue influence, the respondent successfully answered this evidence. Accordingly, the motion was dismissed.
6In my reasons, I provided that if the parties were unable to agree on the issue of costs, they could deliver written submissions on costs in accordance with the timetable that was established. The parties were not able to agree, and delivered written submissions on costs, which I have considered.
7The estate seeks an order that Ms. Cissek personally pay full indemnity costs totalling over $42,000.
8Ms. Cissek submits that both parties’ costs should be payable out of the estate, or alternatively, that the respondent’s costs be fixed at a substantially reduced amount.
9For the reasons that follow, I order Ms. Cissek to pay costs to the respondent in the amount of $25,000 inclusive of fees, disbursements, and H.S.T.
Legal Framework
10Historically, Canadian courts ruled that the costs of all parties in estate litigation were to be paid out of the estate: McDougald Estate v. Gooderham (2005), 2005 21091 (ON CA), 255 D.L.R. (4th) 435 (Ont. C.A.), at para. 79.
11In Ontario, the historical approach to costs has been displaced in favour of one in which the costs rules in civil litigation apply, unless the court finds that one or more of the relevant public policy considerations dictate that costs (or some portion thereof) should be paid out of the assets of the estate: McDougald Estate, at para. 80. The recognized public policy considerations are “[w]here the difficulties or ambiguities that give rise to the litigation are caused, in whole or in part, by the testator” and “[i]f there are reasonable grounds upon which to question the execution of the will or the testator’s capacity in making the will”: McDougald Estate, at para. 78.
12The modern approach recognizes the “need to restrict unwarranted litigation and protect estates from being depleted by litigation”: McDougald Estate, at para. 85.
13In Johnson v. Johnson, 2022 ONCA 682, at para. 21, leave to appeal refused, [2022] S.C.C.A. No. 444, the Court of Appeal reiterated that “[i]t is well established that estate litigation, like all civil litigation, is subject to the general civil litigation costs regime in accordance with s. 131 of the Courts of Justice Act … and r. 57 of the Rules of Civil Procedure,” and that “[e]xceptionally, costs are ordered to be paid out of the estate where policy considerations permit it.” See also Shafman v. Shafman, 2023 ONSC 3893, at para. 7.
14Rule 57.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, sets out the factors the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing, in exercising its discretion under s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43, to award costs.
15The court’s objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay rather than an amount fixed by the actual costs incurred by the successful litigant: Boucher v. Public Accountants Council (Ontario) (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), at para. 26.
Analysis
16The applicant failed to meet the minimal evidentiary threshold under r. 75.06. Neither of the public policy considerations set out in MacDougald Estate are engaged; she did not establish reasonable grounds upon which to question the execution of the will or the testator’s capacity in making the will, and the issues that gave rise to the litigation were not caused by the testator. Under these circumstances, it is appropriate to order costs against her: Johnson, at para. 4.
17The case at bar is similar to Beaurone v. Beaurone Estate, [1997] O.J. No. 1481 (Gen. Div.), in which the testator left a will with a small bequest to one of her sons, the plaintiff, and the balance of the estate to her other son. The plaintiff unsuccessfully challenged the will on the basis of incapacity. Justice McDermid ordered the plaintiff to pay costs on a party and party scale to the estate.
18Ms. Cissek argues that because she led some evidence on the issues of suspicious circumstances and undue influence, her proceeding was consistent with the public policy concern that only valid testamentary documents are to be given effect. Accordingly, both parties’ costs should be borne by the estate.
19The respondent, however, fully answered this evidence. It is not enough to adduce or point to some evidence that, if accepted, could call the will into question. It is only where the proponent of the will “does not successfully answer” the applicant’s evidence that the court will give directions under r. 75.06(3): Neuberger Estate v. York, 2016 ONCA 191, 129 O.R. (3d) 721, at para. 89, leave to appeal refused, [2016] S.C.C.A. No. 207.
20I also found that Ms. Cissek had no reasonable grounds to question her father’s capacity. None of the evidence she relied upon – neither the medical records nor the evidence of Mr. Voros – cast doubt on the deceased’s ability to understand his decision to leave most of his estate to his wife.
21Ultimately, Ms. Cissek did not meet the low threshold for an order under r. 75.06(3). In these circumstances, I disagree that she should not be liable for costs. I find that the case at bar does not fall within the small category of cases that raise the kind of policy concerns that justify payment of costs from an estate.
22The estate submits that Ms. Cissek should pay full indemnity costs because she alleged undue influence. For this proposition, the respondent relies on Fanelli v. Fanelli-Bruno, 2023 ONSC 6501.
23In Fanelli, the applicant obtained production of medical documents on consent from the estate. Following review of that documentation, the applicant withdrew his challenge to the will based on testamentary capacity and undue influence. The estate sought costs. Justice Myers found that the applicant had adduced no evidence in his initial application to suggest the deceased lacked testamentary capacity. Indeed, the applicant relied only on medical records that the deceased had been in severe pain and taking morphine a year prior to the signing of the will. The evidence of undue influence amounted to ‘bald assertions’.
24In contrast, Ms. Cissek adduced evidence of undue influence which I found at para. 38 of my reasons “on their own may meet the minimum threshold for calling the validity of the Last Will into question.” In other words, the allegations of undue influence and suspicious circumstances were not ‘bald assertions’. That the respondent successfully responded to the allegations does not render them frivolous.
25In addition, Ms. Cissek relied on the evidence of Mr. Voros, one of the witnesses and the person who drafted the will, who expressed some concern about the circumstances of the will. These facts are distinct from those in Fanelli.
26To accept the estate’s submission that full indemnity costs are warranted is to accept that costs on this scale are the default rule whenever a party unsuccessfully alleges undue influence in the making of a will. I am not convinced that such a default rule is consistent with public policy.
27In terms of the r. 57.01 factors, the most relevant are as follows:
The amount claimed and amount recovered: the full value of the estate ($511,000) was at issue. Ms. Cissek’s share, had she been successful on the merits, was half this amount.
The complexity of the proceeding: the application was not complex. Both counsel, as experienced estate lawyers, ought to have been familiar with the legal issues.
The importance of the issues: the issues were important to the parties, especially to Ms. Laszlo, who is elderly and depends upon the distribution of the estate for her livelihood.
Any steps that were negligent, improper or vexatious: Ms. Laszlo points to a last-minute acceptance of an adjournment request and late filing of a factum. I accept that the factum was filed a day late but do not find it justifies a higher order of costs. The late acceptance of the adjournment request, while less than ideal, did not result in any costs thrown away.
Experience of parties: the respondent’s lawyer, Ms. Papp, has over 30 years of experience and charges $600/hour. Although a second senior lawyer also billed 2.7 hours, the time spent was not duplicative of Ms. Papp’s work.
28I must also consider the principles of proportionality and reasonableness. I note that the applicant’s counsel team spent approximately 15 more hours on the motion than did the respondent’s team. The dockets submitted by the applicant are not detailed, but in any event, the court’s task is not to parse the time spent. The total number of hours devoted to defending the motion is not unreasonable.
Order
29After consideration of all relevant factors, I have concluded that the case at bar is not an exceptional case justifying departure from the ordinary rules relating to costs in civil proceedings. I have also found that the respondent has not established a basis for an award of costs on an elevated scale.
30In the exercise of my discretion and on the basis of applicable principles, I find that it is fair and just to fix the respondent’s costs on a partial indemnity scale in the amount $25,000, inclusive of fees, disbursements and H.S.T. This amount is roughly equivalent to 60% of the respondent’s costs on a full recovery basis.
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Jasminka Kalajdzic
Justice
Released: March 11, 2026
CITATION: Cissek v. Laszlo, 2026 ONSC 1493
COURT FILE NO.: CV-25-35621-00ES
DATE: 20260311
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Elizabeth Margrit Laszlo Cissek
– and –
Ilona Maria Laszlo, in her personal capacity, and in her capacity as Estate Trustee for the Estate of Charles Laszlo
COSTS ENDORSEMENT
Kalajdzic J.
Released: March 11, 2026