Occasionally, an estate of a deceased person may be unadministered yet it is nonetheless in the interest of justice that such estate have representation in proceedings before the Court.  For example, one estate may claim an entitlement in another estate. However, if the estate claiming such an entitlement is otherwise insolvent, it may be that no one is prepared to administer the estate and, as executor, actually advance the claim.  It may then be left to a beneficiary to seek a Representation Order from the Court (under Rule 10.02 of the Rules of Civil Procedure) authorizing him or her to either: (i) represent the interests of the estate under which he or she takes or (ii) allow his or her application to proceed in the absence of an appointed executor.

Such was the fact situation in the decision of Justice Hoy of the Ontario Superior Court of Justice in Sloan v. Witkin released June 15, 2011.  In finding that the application advanced by Ms. Sloan should be allowed to proceed, Her Honour stated, in part, as follows:

I accept…that the court should be cautious in granting authority to carry out litigation without the burden of administering the entire estate. On the very particular facts of this case, however, I am persuaded that an order should issue pursuant to Rule 10.02 permitting Ms. Sloan to do so in the absence of a person representing the Moldaver Estate.  In addition to being a beneficiary of the Moldaver Estate, Ms. Sloan is, allegedly, a creditor.  If her application prevailed, she would not be an appropriate executor. Additional steps would be required at that time to name a different executor. This is an unnecessary expense. The Moldaver Estate is – absent entitlement from the Fox Estate ‑ insolvent; not surprisingly, no one has volunteered for this task….Moreover…the proceeding at issue is an application for the determination of rights depending on the interpretation of a will, not an action where facts are in dispute.

David M. Smith – Click here for more information on David Smith