How to Bring the Issue of Competing Claims for a Certificate of Appointment before the Court

April 12, 2011 Hull & Hull LLP Litigation Tags: , , , , , , , 0 Comments

A Certificate of Appointment as Estate Trustee without a Will can be issued under s. 29(1) of the Estates Act to the person to whom the deceased was married immediately before death; the person with whom the deceased was living in a conjugal relationship outside of marriage immediately before death; the next of kin of the deceased, or a combination of the above.

Often, there are competing claims for a Certificate of Appointment by different individuals who may be entitled the Certificate. 

The question of how this issue of competing claims is properly brought before the Court was considered in Gardiner v. Whetung, 2009 CanLII 70510 (Ont. S.C.), a decision of Quinn J.

There, a purported spouse applied for a Certificate of Appointment. The deceased’s mother objected by filing a Notice of Objection. The mother also brought an application under Rule 14.05 of the Rules of Civil Procedure, seeking an Order appointing her as Estate Trustee.

 The purported spouse brought a motion to dismiss the mother’s application. She argued that the mother did not have a “financial interest” in the estate, and thus, could not object to the application brought by the purported spouse.

Quinn J. held that while the mother did not, in fact, have a financial interest in the estate, and thus could not file a notice of objection, she could properly bring an application to be appointed estate trustee. S. 29 of the Estates Act sets out who can apply, and a financial interest in the estate is not a prerequisite to such an application.

Quinn J. considered the legislation and the Rules and found that the Rules do not clearly set out how competing claims should be brought or decided. An Order for Assistance is not appropriate, as, there too, a financial interest in the estate is a prerequisite. 

Quinn J. concluded that the mother could have submitted her own application for a Certificate. However, this would simply mean that the registrar would have two applications, and the matter would have to be brought before a judge.

The better approach, Quinn J. observed, was to issue a Notice of Application for opinion, advice and directions of the court under Rule 14.05(a).

Thank you for reading.

Paul Trudelle

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