Worth Repeating – Best Practices on the Estates List
Mr. Justice Brown presented a paper at the recent OBA CLE Seminar Emerging Trends in Estates and Trusts: What Does the Future Hold? Mr. Justice Brown’s paper was adeptly titled One Judge’s “Wish List”: Best Practices on the Estates List. Mr. Justice Brown sits in Toronto and is a member of the Estates List. In one section of his paper, Mr. Justice Brown wrote as follows under the heading “Who is your audience?”
“In Toronto the Superior Court of Justice operates an Estates List. Each week one judge is assigned to sit exclusively on the Estates List and another judge is available for the last three days of the week if the need arises. Estates List judges are drawn from one of the two Toronto civil teams or, occasionally, from the civil long trials team. Usually newly appointed judges are assigned to a civil team for their first year on the bench. As a result the judges who hear matters on the Estates List more likely than not will come from a civil or commercial litigation background, but will not necessarily possess specialist training in estates or trusts.
What this means is that on issues of process most Estates List judges will bring a civil or commercial litigation mindset to questions of how contested Estates List matters should proceed. Accordingly, practices such as multiple pre-trial conferences, “hands on” case management, orders that streamline and narrow issues, putting in place mechanisms to ensure that no trial by ambush occurs, and developing creative ways to conduct hearings will all be on the radar screen of most Estate List judges. While Rules 74 and 75 of the Rules of Civil Procedure prescribe some aspects of the process for estates matters, they place a broad discretion in the hands of judges to shape and manage contested proceedings in order to achieve the overarching principle of the Rules of Civil Procedure – to “secure the just, most expeditious and least expensive determination of every civil proceeding on its merits”. As counsel, you should be prepared to be creative in proposing procedures which will achieve these objectives in your case.”
I think the above comment is not only instructive, but applies equally to estate matters heard outside of Toronto and is worth bearing in mind.
Thanks for reading my blogs this week and have a good weekend.