ESTATE LITIGATION: Challenging a will with the court’s assistance
Orders for Assistance
Other kinds of orders are necessary in estate matters in specified circumstances, Rules of Civil Procedure (Rules), r. 74.15, which can be obtained from the court. For instance, an order for assistance is obtained on a motion made without notice, supported by affidavit evidence, Rules, r. 74.15(2). With certain exceptions, an order for assistance is to be served by personal service or by some other method, as directed by the court. The court can also direct any person to be examined under oath to decide a motion for such an order, Rules, rr. 74.15(3) and (4). Generally, common types of orders for assistance include the following:
Order to Accept or Refuse Appointment as Estate Trustee With a Will, r.74.15(1)(a) — Form 74.36
When this order is passed, an estate trustee is compelled to apply for a Certificate of Appointment within a given time limit. Failure to do so results in he or she being deemed to have renounced the right to do so. It is a useful tool in situations where a person having a financial interest in an estate comes to know of a will, as also the fact that no steps have been taken by the named estate trustee to apply for a Certificate of Appointment. Consequently, there is a genuine concern that steps may be taken in the administration of the estate without the knowledge of interested parties. Likewise, it is useful in situations where a party wishes to challenge the validity of a will and has filed a notice of objection, but no application for a Certificate of Appointment has yet been filed. Considering that the application has to be filed before the notice of objection takes effect, obtaining an order to accept or refuse the appointment will initiate the process.
Order to Accept or Refuse Appointment as Estate Trustee Without a Will, r. 74.15(1)(b) — Form 74.37
Such an order is particularly suitable in circumstances, where, on an intestacy, anyone having a financial interest in the estate is concerned that the person or persons entitled to apply for a Certificate of Appointment of Estate Trustee without a will could be taking steps in the administration of the estate without having obtained the Certificate and not advising those beneficially entitled.
Order to Consent or Object to Proposed Appointment, r. 74.15(1)(c) — Form 74.38)
An order of this nature could be obtained and served on anyone having a financial interest in the estate, whose consent to the appointment of an estate trustee is required, but who has failed or refused to do so. As this would lead to delays in obtaining the Certificate and in administering the estate, the order compels the party to consent or object within a given time limit, failing which, he or she will be deemed to have consented to the proposed appointment.
Order to File Statement of Assets of Estate, r. 74.15(1)(d) — Form 74.39
Anyone having a financial interest in an estate can get this order, which requires an estate trustee to file a statement of assets and their values; it is useful in situations where this information has not been forthcoming. Persons contemplating to challenge a will would be helped by this order to get the required information as to the value of the estate for assessing the relative benefits and the risks of proceeding.
Order for Further Particulars r. 74.15(1)(e)
Even after an estate trustee has filed a statement of assets, further details could be required. In such a situation, a party with a financial interest in the estate can obtain an order asking for those details. Such an order for assistance, via a motion for an order for further particulars, need not be made with notice to everyone interested. Instead, it has to be made on ten days notice to the estate trustee, Rules, r. 74.15(2).
Order to Beneficiary Witness r. 74.15(1)(f) — Form 74.40
If a beneficiary or a spouse of a beneficiary is the witness of a will or codicil, any person having a financial interest in the estate can obtain an order requiring the witness to bring a motion within a specified period of time asking the court to find that he or she did not exert any improper or undue influence on the testator. If such a motion is not brought about, the court will permit the applicant to obtain a Certificate of Appointment of Estate Trustee bearing a notation that the bequest to the witness is void under s. 12 of the Succession Law Reform Act (SLRA).
Order to Former Spouse (r. 74.15(1)(g)— Form 74.41
Under subsection 17(2) of the SLRA it is stated that except when a contrary intention appears in the will, after the testator makes a will, his or her marriage is terminated by a divorce judgement or is declared a nullity, and any devise or bequest of a beneficial interest in property to the testator’s former spouse or any appointment of the former spouse as estate trustee is revoked and the will shall be construed as if the former spouse had predeceased the testator. If so, anyone having a financial interest in the estate can apply for an order requiring the former spouse of the testator to participate in the determination of the issue regarding the validity of any such bequest or appointment by entering an appearance within a specified number of days. If the testator’s former spouse fails to do so, then the matter will be determined in his or her absence, and the former spouse will be bound by the result.
Order to Pass Accounts, r. 74.15(1)(h) —Form 74.42
Besides the foregoing, the court can direct to obtain an order for any other type of assistance that is necessary, Rules, r. 74.15(1)(i).