Interplay between Estate Litigation and General Civil Litigation: The Use of Rule 39

May 20, 2009 Hull & Hull LLP Litigation Tags: , , , 0 Comments

Estate litigation differs in many ways from general civil litigation, as noted in previous blogs on our website. Differences notwithstanding, estate litigators should still make it a habit to consider all of the Rules of Civil Procedure when planning out their litigation strategy.

In gathering the necessary evidence in estate litigation matters, counsel must resort to Rule 39 of the Rules of Civil Procedure. Rule 39 deals with how evidence may be provided on motions and applications. In the usual course, evidence is given by affidavit and cross-examination on affidavits. However, Rule 39 provides for other ways to obtain evidence:

  • by the examination of a witness before the hearing of a pending motion or application [rule 39.03(1)];
  • by the examination of a witness orally at the hearing, with leave of the court [rule 39.03(4)]; or
  • by the use of an examination for discovery on the hearing of a motion [rule 39.04].

The examination of a witness before the hearing of a pending motion or application [rule 39.03(1)] can prove a useful tool for obtaining evidence from non-parties to the litigation. If a non-party witness has relevant evidence, there is arguably a prima facie right to resort to this rule so long as the right is not exercised in a way that constitutes an abuse of process. A witness examined under Rule 39.03 may be cross-examined by the examining party and any other party. 

In my own estates and trust litigation practice, I have used Rule 39.03 to summons solicitors and health practitioners to give relevant evidence about a deceased individual in Will challenge proceedings. Rule 39.03 can prove a useful tool to other estate litigators in marshalling their evidence for motions and applications. 

Have a great day!

Bianca La Neve

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