Tag: civil procedure
I recently attended a panel discussion with judges of Toronto’s Commercial and Estate Lists, the purpose of which was to explore tips for effective practice and advocacy. A key takeaway from this discussion was that case conferences are a valuable tool in a litigator’s toolbox, particularly when litigation becomes contentious.
Case conferences are governed by Rule 50 of the Rules of Civil Procedure. The purpose of Rule 50 is to promote settlement of some or all of the issues in dispute without a hearing, and to obtain orders or directions to ensure that any necessary hearing is expeditious, orderly, and efficient.
Rule 50.13 dictates that a judge may direct a case conference before a judge or case management master, in either an action or application, on his or her own initiative or at a party’s request. A judge can direct a case conferences at any stage of the litigation. Pursuant to Rule 50.13(5), at a case conference, the judge or case management master may:
- identify the issues, noting those that are contested and those that are not;
- explore methods to resolve the contested issues;
- if possible, secure the parties’ agreement on a specific schedule of events in the proceeding;
- establish a timetable for the proceeding; and
- review and, if necessary, amend an existing timetable.
As discussed by my colleague, Kira Domratchev, in her blog on Rule 49 offers to settle, Ontario is a jurisdiction where parties are encouraged to settle their legal disputes prior to reaching the ultimate hearing of a matter. Case conferences are a valuable tool for parties who are looking to narrow the issues before the court, establish a timetable, or potentially reach a full and final settlement.
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What happens if an individual dies intestate, and upon application for a Certificate of Appointment of Estate Trustee Without a Will, a Not Clear Certificate is returned to the applying party?
Pursuant to Rule 74.12 of the Rules of Civil Procedure:
(1) A certificate of appointment of estate trustee shall not be issued until the court has received from the Estate Registrar,
(d) on an application where there is no will, a certificate that no will or codicil has been deposited in the Superior Court of Justice.
A will being deposited in the Superior Court of Justice does not necessarily mean that the will belongs to the deceased individual. Therefore, while one may receive a Not Clear Certificate (“Certificate”) from the Estate Registrar for Ontario, it does not guarantee that a will exists in the deceased’s name. Rather, the Certificate creates the need for the applicant to take extra steps to ensure that the wills that are deposited with the Superior Court of Justice are not wills that belong to the deceased.
What Steps Should You Take?
A Certificate sent by the Estate Registrar for Ontario will contain a list of different deposit dates and court file numbers, corresponding to wills that are already deposited with the Superior Court of Justice. The listed wills on deposit will all have names similar to that of the deceased individual.
Upon receipt of the Certificate, it is the applicant’s or their lawyer’s responsibility to track down each of the deposited wills, in order to prove that they do not belong to the deceased. This involves attending the Registrar of the Court where the will has been
deposited. In some circumstances, faxing the Certificate will suffice. The Registrar will then deliver to the applicant a photocopy of the Envelope for Will on Deposit. This will allow the applicant to make the necessary investigation to determine that the will on deposit is not the will of the deceased. The Envelope for Will on Deposit contains the name of testator, the testator’s address, the name of the executor, the executor’s address, and the date the will was deposited for safe keeping.
Once the applicant gathers all of the Envelopes for Will on Deposit, the applicant must go through the envelopes and ensure they do not belong to the deceased. The applicant must then prepare an Affidavit stating that each Envelope for Will on Deposit does not belong to the deceased. The Affidavit should be filed at the Court, along with the Certificate. Once the Court is satisfied the deposited wills do not belong to the deceased, a Certificate of Appointment of Estate Trustee Without a Will should be issued. If the will does, in fact, belong to the deceased, different steps will need to be taken in order to obtain a Certificate of Appointment of Estate Trustee With a Will.
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On occasion, a Court may conclude that a disgruntled beneficiary’s agenda was simply to put up roadblocks to the executor without having any real intention or expectation of successfully challenging the validity of a Will. Such was the case in Elliot v Simmonds  EWHC 732 (CJ), which imposed costs sanctions against an individual whose “passive objection” to a Will was found to unreasonably require the executor to prove the Will in solemn form.
In England and Wales (as in Ontario), a person with a financial interest or the executor may seek proof of a will in solemn form (i.e. in open court) upon notice to all persons appearing to have a financial interest in the estate. The court must be satisfied, upon the examination of the witnesses, of the due execution of the Will and of the testamentary capacity of the testator. The onus of proving due execution and testamentary capacity is upon those propounding the Will. (The Ontario Court of Appeal recently pronounced in detail on proof in solemn form in the context of Rule 75 of the Rules of Civil Procedure in Neuberger Estate v. York 2016 ONCA 191). A previous blog on Neuberger Estate v. York can be found here.
In Elliot v. Simmonds, the Deceased (Mr. Jordan) left his entire estate to his wife (Ms. Elliot) and left nothing to his illegitimate daughter (Ms. Simmonds). Ms. Simmonds lodged a caveat (analogous to a Notice of Objection in Ontario) to prevent Ms. Elliot from obtaining probate. Furthermore, Ms. Simmonds made various allegations impugning the validity of the Will, but took no active steps to produce evidence in support. Eventually, the executor of the estate (Ms. Elliot) had no option but to prove the Will in solemn form.
Pursuant to the Civil Procedure Rules (England and Wales) (“CPR”), on a proceeding proving a will in solemn form, the Objector (in this case Ms. Simmonds) can effectively do nothing but insist that the executor attend at trial and prove the Will. Moreover, Ms. Simmonds (wrongfully, as it turned out) assumed that she was immunized against costs of her actions by part 57.78(5)(b) of the CPR which provides that:
(b) If a defendant [i.e. Objector] gives such a notice [i.e. a Notice of Appearance], the court will not make an order for costs against him unless it considers that there was no reasonable ground for opposing the Will.
At the conclusion of the trial, substantial costs had been incurred by Ms. Elliot who propounded the Will. Ms. Elliot made an application for costs, arguing that Ms. Simmonds acted unreasonably by passively placing the burden on Ms. Elliot to prove the Will notwithstanding that Ms. Simmonds had been in possession of all relevant evidence in advance of the proceeding (which supported the will’s validity), adduced no witnesses or medical evidence to the testator’s capacity, and acted obstructively in the proceedings. As such, the judge agreed with Ms. Elliot and ordered precedent setting costs of GBP65,000 against Ms. Simmonds.
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This week on Hull on Estates, Natalia Angelini and Umair Abdul Qadir discuss the new Rule 75.2 of the Rules of Civil Procedure. Rule 75.2 provides the Court with the authority to order a mediation in certain estate litigation matters even when mandatory mediation under Rule 75.1 does not apply, and came into force on January 1, 2016.
Should you have any questions, please email us at firstname.lastname@example.org or leave a comment on our blog.