Application to Pass Accounts – Reply to Notice of Objection to Accounts

May 10, 2016 Stuart Clark Passing of Accounts Tags: , , , , , , , , 0 Comments

The Application to Pass Accounts often serves an important function in the administration of an estate, allowing for an open and honest accounting to the beneficiaries of what has transpired, and providing a mechanism by which the Estate Trustee may be paid compensation. In the event that any of the beneficiaries should have any issue with the accounts, or generally with the administration of the estate, they may file a Notice of Objection to Accounts in accordance with rule 74.18(7) of the Rules of Civil Procedure, and the matter may proceed before the court on a contested basis, ultimately allowing the court to determine the validitNO25KUN6AIy of the objections should the parties be unable to resolve them personally.

In the past, parties could often find themselves at a stalemate following the service of a Notice of Objection to Accounts, as the Rules of Civil Procedure did not require the Applicant to provide the Objector with any formal response to the objections which had been raised. In order to get around such a potential issue, counsel would often attempt to create a system outside of the Rules, whereby the Applicant would provide the Objector with a reply to the objections which had been raised, with such a reply typically taking the form of a letter to the Objector’s counsel addressing each objection numerically in the order in which they were raised. Such a letter informally came to be known as a “Reply to Notice of Objection to Accounts”, and the timeframe for it being provided to the Objector was often set out in any Order Giving Directions dictating how the Application to Pass Accounts was to proceed.

Although the informal “Reply to Notice of Objection to Accounts” served an important function, it continued to have limitations, for as it was not a formal court document which was to be before the court its impact could be limited. Such a limitation no longer appears to be a concern however, for with the recent changes to the Rules of Civil Procedure which took effect on January 1, 2016, the “Reply to Notice of Objection to Accounts” has become formalized within the Rules of Civil Procedure in the form of the new Form 74.49.4.

Rule 74.18(11.5) of the revised Rules of Civil Procedure provides that at least 10 days prior to the hearing date of the Application to Pass Accounts, the Applicant shall serve upon all people listed under rule 74.18(11.6) a consolidation of all remaining objections in the Notice of Objection to Accounts, as well as a Reply to Notice of Objection to Accounts in the form of Form 74.49.4.

Although rule 74.18(11.5) provides little guidance with respect to what is to be contained in the “Reply to Notice of Objection to Accounts”, and the revised Rules have yet to be fully explored before the court, from a review of the draft Form 74.49.4 which has been provided with the Rules, it appears that such a reply will not be too dissimilar from what was previously informally provided. While the Reply to Notice of Objection to Accounts will no longer take the form of a letter to counsel as it did previously, the content of the Reply to Notice of Objection to Accounts appears to remain substantially unchanged, insofar as it will continue to have the Applicant answer each objection numerically in the order in which they were provided for in the Notice of Objection to Accounts.

Stuart Clark

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