Application for Opinion, Advice, or Direction vs. Application for Direction

January 28, 2008 Hull & Hull LLP Litigation Tags: , , , , , , , , , , , , 0 Comments

As this is the beginning of the week, I would like to take this opportunity to visit two of the rules from the Rules of Civil Procedure, which are frequently used by estate litigators.

Rule 14.05(3)(a) states that "a proceeding may be brought by application where these rules authorize the commencement of a proceeding by application or where the relief claimed is, the opinion, advice or direction of the court on a question affecting the rights of a person in respect of the administration of the estate of a deceased person or the execution of a trust".  In contrast, Rule 75.06(1) states that "any person who appears to have a financial interest in an estate may apply for directions … as to the procedure for bringing any matter before the court".

It is clear from the language of these rules that an Applicant may use either rule to apply for directions from the court.  The difference between the two rules lies in the relief that the Applicant seeks. 

Rule 14.05(3)(a) is a substantive remedy that addresses the rights of a person with respect to the administration of an estate or the execution of a trust.  Therefore an Applicant who relies on Rule 14.05(3)(a), is asking the court to make a determination of his or her rights in the context of an estate.  For example, whether or not an Applicant has an interest under the deceased’s Last  Will and Testament.

Rule 75.06(1) is a procedural remedy.  In essence, Rule 75.06(1) provides the road-map for "any matter before the court".  Therefore an Applicant who utilizes Rule 75.06(1) may seek a court order that permits the disclosure of relevant documents to their matter and establish time-lines for the completion of a specific phase in their court proceeding.  For example, the court may decide that mediation should be completed within 90 days and as such, include a mediation clause in a court order.

In summary, both rules can may be used to apply to the court for direction, however with Rule 14.05 (3)(a), the Applicant is asking the court for a specific answer to a question affecting his or her rights, whereas with Rule 75.06(1), the Applicant is requesting that the court provide them with a guideline to their court proceeding.

Have a Great Day!

Rick Bickhram

Leave a reply

Your email address will not be published. Required fields are marked *

SUBSCRIBE TO OUR BLOG

Enter your email address to subscribe to this blog and receive notifications of new posts by email.
 

CONNECT WITH US

CATEGORIES

ARCHIVES

TWITTER WIDGET