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ESTATE LITIGATION: Battle of the Wills

With the Certificate of Appointment of Estate Trustee already in the hands of the supporter, the proceedings to challenge a will cannot be commenced by filing a notice of objection. The challenger has to obtain an order requiring the Certificate to be returned to the court, on a motion without notice by filing a draft order and an affidavit in support. This affidavit should specify the interest of the party applying for the order, and the general grounds upon which the order (to return the original Certificate of Appointment to the court) is sought. Once that is done, the appointment has no further effect and the supporter has to move for directions within 30 days. Of course, the estate trustee (if not the supporter) can also do so at any time. If, however, the challenger loses steam and does not try a motion for directions within 30 days, the estate trustee can move, without notice, for an order releasing the Certificate to him or her which, if granted, will permit the estate trustee to proceed with the administration of the estate in accordance with the terms of the will.

Motion for Directions

For directions, the applicable provision states that “any person who has a financial interest in an estate may apply for directions, or move for directions in another proceeding under this rule, as to the procedure for bringing any matter before the court”. This is done when one of the following has happened:

  • An objector has served and filed a notice of appearance, when the proceedings were commenced by notice of objection; or
  • An order has been obtained by an interested party requiring the estate trustee to return the Certificate of Appointment to the court.

So, a motion is to be brought for directions as to the conduct of the proceedings within 30 days of either event. Notice of the motion has to be served on all persons who appear to have a financial interest in the estate or as the court directs, at least ten days before the hearing date.

Directions

The court on hearing the motion for directions, would possibly:

  • Enumerate the issues to be dealt with;
  • State definitively who are the parties (who is plaintiff and defendant and who is submitting rights to the court); and
  • Point out who is to be served with the order giving directions and direct the method and timing of such service.

The order giving directions would also address procedures for bringing the matter before the court in summary fashion, if appropriate. It would also deal with such matters as the appointment of an estate trustee to administer the estate during litigation and the requirement for security.  Steps to be taken at the pre-trial stage, like mediation, examinations for discovery, and production of documents. The Children’s Lawyer or Public Guardian and Trustee is generally not required to submit to examinations for discovery, but could take part in the examinations of other parties. Usually, the order giving directions states that the issues are to be tried before a judge without a jury. After the completion of the pre-trial procedures, the matter is ready to be set down for trial on a date to be fixed by the registrar, upon notice to all parties.

Procedure when a claim is filed

Generally, pleadings are not a part of such proceedings, yet the order giving directions would perhaps require the plaintiff to serve and file a statement of claim. If a statement of claim is delivered, it is to be served on each defendant who in turn has to serve on every other party and file, with proof of service, a statement of defence or a statement of defence and counterclaim. It is for the plaintiff then to deliver a reply or reply and defence to counterclaim. Whoever is served with a statement of claim and fails to file one of these documents in response is not a party to the proceeding, and his or her consent to any settlement, agreement or consent judgment is not required.

Administration during litigation

When the motion for directions is brought, often an order is sought for the appointment of an Estate Trustee during Litigation. Though such a person gets the authority to administer the estate while the litigation concerning the validity of the will is pending, she or he has no authority to make distributions of the residue of the Estate. When the litigation is concluded, the estate trustee so appointed automatically loses authority to act on behalf of the estate. Such an appointee to administer the estate during litigation is required to post bond in the amount of double the value of the property under administration (if an individual Trustee, if the Trustee is a corporate Trustee then the bond need only be one times the value of the estate). However, the court has the discretion to reduce the amount, or dispense with the bond altogether, in appropriate circumstances. If not stated otherwise, the bond must be issued by an insurer licensed under the Insurance Act to underwrite surety and fidelity insurance in Ontario, or one or more personal sureties who are resident in Ontario and above the median age. One personal surety is adequate when the value of the assets of the estate is below $100,000.

Unless otherwise stated, the court will generally not appoint one of the parties to the proceedings or anyone whose involvement would be a question mark on the administrator’s objectivity.

Interestingly, the estate trustee takes authority from the will itself, and therefore does not always require a Certificate to administer an estate. So, while a person wishing to challenge the validity of a will may file a notice of objection with the court, the estate trustee named in the will is under no obligation to apply for a Certificate or even to determine whether a notice of objection has been filed.

The lawyers at Levy Zavet PC are diligent in drafting wills, let alone administering your estate, and challenging, objecting or defending on your behalf.

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