ESTATE LITIGATION: Challenging a will and strategies for all those concerned
Submission of Rights to the Court
After submitting his or her rights to the court, Rules of Civil Procedure (Rules), r. 75.07.1, a person can either:
- Request on a motion for directions respecting the conduct of the Application for a Certificate of Appointment; or
- File a statement of submission of rights to the court in response to a statement of claim filed by the plaintiff in compliance with the order giving directions.
Although he or she is not a party to the proceedings, the person is entitled to written notice of the time and place of the trial and a copy of the judgment disposing of the matter. Such a person is not entitled to costs, nor is he or she liable for any party’s costs, except when the costs are ordered to be paid from the estate. The major benefit of this process is that the matter cannot be settled without his or her involvement.
Settlement Involving a Person who has Submitted Rights to the Court
If parties to the issues try to reach a settlement, any person who has submitted his or her rights to the court, Rules, r. 75.07.1(c) has to either provide a written consent to the settlement or must be personally served with a “notice of settlement” (Form 75.11), attaching a copy of the agreement or minutes of settlement on which judgment will be sought. Should the person served object to the terms of settlement, he or she should also serve and file a “notice of rejection of settlement” (Form 75.12), stating the reasons why the settlement is rejected. The objection is to be served and filed within ten days of service of the notice of settlement. A judgment on consent approving settlement of a matter would not be issued by the court without either the written consent of any person who has submitted his or her rights to the court or, where such consent is absent, an affidavit of a solicitor of record in the matter attesting that a notice of settlement was personally served on the person and no rejection of settlement was filed within ten days following service of the notice.
Request for Notice of Commencement of Proceeding
Prior to the issuance of a Certificate of Appointment of Estate Trustee, any person who has a financial interest in the estate and desirous of being informed of the commencement of a proceeding in the estate can file with the registrar a “request for notice”, Rules, r. 74.03, Form 74.3. Following this, the Registrar will notify the person, by regular mail, of any proceeding commenced in the estate. Through this measure, an interested party would be notified early if a notice of objection is filed challenging the validity of the will. For three years, the request is effective, but there is a provision for filing a further request at any time before the Certificate of Appointment is issued.
Administration During Litigation
When the motion for directions is brought, an order is often requested for the appointment of an Estate Trustee during Litigation. Such a Trustee has the authority to administer the estate while the litigation concerning the validity of the will is pending, but is not empowered to make distributions of the residue of the Estate, Estates Act, s. 28. Just after the litigation is concluded, the estate trustee so appointed automatically loses authority to act on behalf of the estate. The trustee appointed to administer during litigation is required to post bond in the amount of double the value of the property under administration, but the court has the discretion to reduce the amount, or dispense with the bond altogether, in appropriate circumstances, Estates Act, ss. 35, 36 and 37.
If not directed otherwise, the bond must be issued by an insurer licensed under the Insurance Act to write surety and fidelity insurance in Ontario, or one or more personal sureties who are resident in Ontario and over the age of majority. When the value of the assets of the estate is not over $100,000, Rules, r. 74.11(1), one personal surety is considered adequate. The court generally does not appoint one of the parties to the proceedings or anyone whose involvement would bring into question the administrator’s objectivity, but does so only after consent.
Order to Accept or Refuse Appointment
The will itself gives an estate trustee authority that does not always require a Certificate of Appointment to carry out the administration of an estate. Accordingly, while a person wishing to challenge the validity of a will may file a notice of objection with the court, one of the difficulties with this procedure is that the estate trustee named in the will is under no obligation to apply for a Certificate of Appointment or even to determine whether a notice of objection has been filed. Should there be no application for a Certificate of Appointment, or should the objector be unaware that the estate trustee intends to apply for a certificate, the best thing would be to apply for an order requiring the estate trustee to either apply for or refuse the appointment, Estates Act, s. 24, Rules, r. 74.15(1)(a), Form 74.36. Such “order to accept or refuse appointment” can be obtained without notice in the same manner as that used to obtain an order to return the Certificate of Appointment to the court, as described above. After an Application for a Certificate of Appointment is filed in response to the order, the notice of objection takes effect and the challenge to the will proceeds as usual.
Revocation of Certificate of Appointment
Anyone with a financial interest in an estate can make an application to the court to revoke the Certificate of Appointment of an estate trustee, Rules, r. 75.04. Such a procedure is different from a challenge to the validity of a will. This is followed when the validity of the will is not in question, but the Certificate was issued in error or as a result of a fraud on the court, or where the appointment is no longer effective, or for any other appropriate reason. An example of the application of this rule is when a Certificate of Appointment is issued in connection with a will thought to be the deceased’s last will, but a later, unrevoked will is subsequently found. If it is possible to satisfy the court that the Certificate was issued in error, and no issue arises as to the validity of the later will, the court, on the hearing of the application, can order the revocation of the Certificate, thereby permitting the later will to be probated.
A move for directions under r. 75.06 with respect to the conduct of the proceeding would be necessary in more complex or contentious circumstances. It is not uncommon, in the context of an application to revoke a Certificate, to make a motion, without notice, for an order requiring the estate trustee to return the Certificate of Appointment to the court pending the determination of the issues, Rules, r. 75.05(1)(b). After such an order is served on the estate trustee, the appointment will have no further effect until the issues are determined or the certificate is ordered to be released back to the estate trustee.