ESTATE LITIGATION: Challenging the validity of a Will after probate
Order for Return of Certificate (Probate already obtained)
When a Certificate of Appointment of Estate Trustee (Certificate) has already been issued, the proceedings to challenge a will are not commenced by filing a notice of objection. In that event, the party wishing to challenge the validity of a will has to obtain an order directing the Certificate to be returned to the court, Rules of Civil Procedure (Rules), r. 75.05(1). The order can be obtained on a motion without notice by filing a draft order and an affidavit in support, specifying the interest of the party applying for the order, and the general grounds upon which the order is requested for. According to the order, the Estate Trustee is to return the original Certificate of Appointment to the court forthwith. After the order has been served on the Estate Trustee, the appointment has no further effect and no further action can be taken with respect to the administration of the estate until the issues respecting the validity of the will have been determined, or the court orders the Certificate to be released back to the estate trustee, Rules, r. 75.05(3).
A time limit of 30 days is given after the court order, within which the Certificate is to be returned, and the person who obtained the order has to move for directions. The estate trustee can also do so at any time, Rules, r. 75.05(4) and (5). A motion for directions by the party challenging the will within the 30-day period is very crucial, otherwise the estate trustee can move, without notice, for an order releasing the Certificate to him or her, Rules, r. 75.05(6) 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
Addressing both applications and motions for directions, Rule 75.06 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 can be done:
- When an objector has served and filed a notice of appearance, where the proceedings were commenced by notice of objection; or
- When an order has been obtained by an interested party requiring the estate trustee to return the Certificate of Appointment to the court, a motion is to be brought for directions as to the conduct of the proceedings within 30 days of either event, Rules, r. 75.05(4).
Notice of the motion is 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, Rules, r. 75.06(2), Form 75.6.
Order Giving Directions
After the motion for directions has been heard, the court possibly would:
- Specify the issues to be dealt with;
- Identify the parties, who is plaintiff and defendant, and who is submitting rights to the court; and
- Specify who is to be served with the order giving directions and direct the method and timing of such service.
Under the order providing directions, Rules, r. 75.06(3) and Form 75.9, procedures would be given for bringing the matter before the court in summary fashion, if appropriate. It could also deal with such issues as the appointment of an estate trustee to administer the estate during litigation and the requirement for security. During this time, pre-trial procedures, like mediation, examinations for discovery, and production of documents are also carried out. Normally, the Children’s Lawyer or Public Guardian and Trustee is not required to submit to examinations for discovery, but can take part in the examinations of other parties.
Usually, the order giving directions provides that the issues are to be tried before a judge without a jury. After the pre-trial procedure is over, the matter is then ready to be set down for trial on a date to be fixed by the registrar, after serving notice to all parties.
Procedure Where a Statement of Claim is Served
In general, pleadings are not made and exchanged in these proceedings, but the order giving directions would require the plaintiff to serve and file a statement of claim, Rules, r. 75.06(3)(e), Form 75.7. If a statement of claim (Form 75.7) is to be delivered, it is to be served on each defendant who would then serve on every other party and file, with proof of service, a statement of defence, or a statement of defence and counterclaim, Rules, r. 75.07(1)(a). The plaintiff can then deliver a reply or reply and defence to counterclaim, Rules, r. 75.07(2). Otherwise, a person served with a statement of claim can instead file a “statement of submission of rights to the court”, Rules, r. 5.07(1)(b), Form 75.10. A person, who is served with a statement of claim and who does not 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, Rules, r. 75.07(4).