In Ontario, if a non-resident of the province files a frivolous lawsuit to challenge a Will, the Estate Trustee can file a motion for “Security for Costs.” This tactical move forces the out-of-province plaintiff to pay tens of thousands of dollars into the court as a guarantee before their lawsuit can proceed, protecting the estate’s finances.
Estate litigation can be a grueling and incredibly expensive ordeal. 📝 It becomes even more frustrating when a distant relative who lives outside of Ontario decides to challenge a Will just to cause trouble. Because they live in another province or country, they know that if they lose the lawsuit, it will be extremely difficult and costly for the Ontario estate to collect the judge’s “costs award” (legal fees) from them. Whether your estate administration is based in Toronto, Windsor, Kingston, or Sudbury, dealing with out-of-province challengers requires sharp legal tactics.
As of May 2026, the Rules of Civil Procedure provide a powerful shield for estates facing this exact scenario. An Estate Trustee can ask the Superior Court of Justice to halt the lawsuit until the foreign plaintiff deposits money directly into the court’s escrow account. This ensures that if the estate wins, the money to cover their legal fees is already sitting in Ontario. This guide breaks down how a Security for Costs motion works and how it can effectively shut down meritless estate litigation.
Step-by-Step Process in Ontario Courts
A motion for Security for Costs is a highly strategic maneuver. 📍 Most legal teams in this province choose to deploy it early in the litigation process to test how committed the challenger actually is.
Step 1: Identifying the Plaintiff’s Residency
The first trigger for this motion under Rule 56.01 is establishing that the plaintiff resides outside of Ontario. If the person challenging the Will lives in Alberta, the United States, or anywhere else globally, the door is immediately open to demand security. It is important to note that residency is the key, not just citizenship.
Step 2: Assessing the Plaintiff’s Assets in Ontario
Even if the plaintiff lives outside the province, the court will look at whether they have sufficient physical assets located inside Ontario. 💼 If the non-resident plaintiff owns a mortgage-free condo in Mississauga worth $600,000 CAD, the court will likely deny the motion. The real estate acts as a built-in guarantee because the estate could seize it if the plaintiff fails to pay the legal costs later.
Step 3: Drafting the Motion for Security for Costs
If the plaintiff lives far away and has no local assets, your law firm will draft the motion. The Estate Trustee must provide an affidavit outlining the projected legal costs to defend the Will challenge. A detailed draft Bill of Costs is presented to the judge, estimating the hours required for discoveries, mediation, and a full trial.
Step 4: The Plaintiff’s Defence (Impecuniosity)
The non-resident plaintiff has the right to fight back. Their most common defence is “impecuniosity,” which means they are genuinely broke. ⚠️ To succeed, they must prove to the judge that they are utterly destitute and that ordering them to pay security would unjustly deny them access to justice. The court demands rigorous financial proof-such as tax returns and bank statements-to accept this excuse.
Step 5: The Court Order and Depositing Funds
If the judge sides with the estate, they will issue an order staying (pausing) the lawsuit. The plaintiff will be given a strict deadline to deposit the specified amount into the Accountant of the Superior Court of Justice. If the plaintiff fails to pay the money by the deadline, their Will challenge is typically dismissed permanently.
| Condition Under Rule 56 | Can the Estate Demand Security? | Likely Court Action |
|---|---|---|
| Plaintiff lives outside Ontario, no assets here | Yes | Judge orders security to be paid into court |
| Plaintiff lives in BC, but owns a house in Toronto | No | Motion denied; the house serves as sufficient security |
| Plaintiff is an Ontario resident, but claim is frivolous | Yes (in rare cases) | Hard to win, but possible if the claim has zero merit |
How Much Does it Cost in Ontario?
Leveraging a Security for Costs motion involves upfront legal fees but can save the estate immense amounts in the long run. 💰
- Cost of the Motion: Having an Ontario lawyer draft and argue the motion generally costs the estate between $5,000 and $12,000 CAD.
- Amount of Security Ordered: The judge determines the required deposit based on the complexity of the case. In a standard Will challenge, orders frequently range from $20,000 to $75,000 CAD, payable in installments.
- Reimbursement: If the estate wins the overall lawsuit, the court releases the secured funds directly to the Estate Trustee to cover the legal bills.
How Long Does the Process Take?
Filing this motion temporarily hits the brakes on the entire litigation process. 🕑
- Filing the Motion: The estate should generally file this motion within 30 to 60 days of receiving the initial lawsuit.
- Hearing Date: Securing a motion date at the Superior Court usually takes 2 to 4 months.
- Payment Deadline: Once ordered, the judge usually gives the non-resident plaintiff 30 to 45 days to transfer the funds into the court’s account.
Frequently Asked Questions (FAQ)
Can an Ontario resident be forced to pay security for costs?
Yes, but it is much harder to prove. Under the Rules of Civil Procedure, an Ontario resident can be ordered to pay security if they have a known history of filing frivolous, vexatious lawsuits, or if it is obvious they are hiding assets to avoid paying future legal costs.
What happens if the plaintiff wins the Will challenge?
If the non-resident plaintiff successfully proves the Will is invalid, the money they deposited as security will be refunded to them in full with accrued interest. Furthermore, the estate will likely be ordered to pay the plaintiff’s legal fees.
Can the security amount be increased later?
Absolutely. The court often orders security in “tranches” or stages. If the litigation drags on and becomes more complex than originally anticipated, the Estate Trustee can return to court to ask the judge to order a second or third round of deposits from the plaintiff.
Is this tactic common in estate disputes?
It is very common when dealing with estranged international relatives. Often, a plaintiff is willing to hire a lawyer on contingency to “roll the dice” on a Will challenge. However, when faced with an order to deposit $50,000 of their own cash upfront, many frivolous challengers simply walk away.
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