Tag: Ignagni Estate (Re)

12 Mar

Should I Bring a Motion in the Estates Court Without Notice?

Noah Weisberg Estate & Trust, General Interest, Litigation, Passing of Accounts Tags: , , , , , , , , , , 0 Comments

When is it appropriate to bring a motion in the Estates Court without notice?   The answer requires consideration of both the statute and common law.

The starting point is Rule 74.15(1) of the Rules of Civil Procedure.  Here, a person who has a financial interest in an estate is permitted to seek an order for assistance.  Some of the more ‘popular’ orders for assistance include: requiring a person to accept/refuse an appointment as estate trustee; requiring an estate trustee to file with the court a statement of the nature and value of the estate assets at the date of death; and, requiring an estate trustee to pass accounts.

Subject to narrow exceptions, Rule 74.15(2) allows these motion to be made without notice (in latin, ex parte).

Notwithstanding this, the Court has not necessarily embraced ex-parte orders with open arms.

For instance, Corbett J. in Robert Half Canada Inc. v. Jeewan found that, before ordering an ex parte injunction, a party needed to demonstrate some element of ‘extraordinary urgency’.

Moreover, and specifically in relation to estates orders for assistance, Justice DM Brown in Ignagni Estate (Re), noted that orders for assistance are not mere administrative devices, and that the consequences of failing to abide by such an order is significant.  He went on to say that, “[m]embers of the Estates Bar may regard the requirement to give notice of a motion for an order for assistance unless “extraordinary urgency” exists as imposing undue costs on the administration of the estate.  Against that must be weighed the fundamental principle that a court should not issue an order against a person without affording that person an opportunity to explain the other side of the story.  Many estate disputes arise in the context of strained family relationships, or out-and-out family battles.  Courts should exercise great caution before granting an order that imposes obligations on one side in a family dispute.  Unless some extraordinary urgency exists, prudence and the principles of natural justice require a moving party to give notice of the order requested so that the respondent enjoys the opportunity of placing the rest of the story before the court.”

Given this, although permissible, parties who intend to seek orders for assistance without notice, must ensure there is ‘extraordinary urgency’ in doing so.

Noah Weisberg

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26 Apr

When Not to Compel a Passing of Accounts

Noah Weisberg Estate & Trust, Executors and Trustees, Litigation, Passing of Accounts, Trustees Tags: , , , , , , , , , , , 0 Comments

Although beneficiaries have a right to compel an accounting from an Estate Trustee, it is not always advisable to do so.  The decision of Pochopsky Estate provides an example of such a situation.

Here, practically all of the deceased’s assets passed outside of the estate.  Although, there was some concern as to whether a joint account held between the deceased and his sister was an estate asset, subsequent evidence was given to the Estate Trustee, including an affidavit from the bank, indicating that the account was not an estate asset.  Accordingly, the Estate Trustee, a friend of the deceased, concluded that there was no money that passed through the estate.

The residuary beneficiaries nevertheless requested that the Estate Trustee proceed against the sister for the joint account and obtain a Certificate of Appointment.  In addition, a formal passing of accounts was sought.

The Estate Trustee thought none of these steps were appropriate given the size of the Estate, and indicated that if forced to formally pass his accounts, he would seek his costs from the residuary beneficiaries.

The residuary beneficiaries obtained an ex-parte Order for the Estate Trustee to pass his accounts.  Although not mentioned in the decision, for an interesting read on the appropriateness of ex-parte motions,  Justice Brown’s decision in Ignagni Estate (Re), is a good one.

On the passing, the Court found that the objections raised by the residuary beneficiaries were ‘ill-founded’, and that they fell into a pattern of aggressively criticizing the Estate Trustee no matter what he did.  Given the size of the estate, the Court ordered that the residuary beneficiaries personally pay the costs of the Estate Trustee in the amount of $17,445.60, and that no costs would be payable to these beneficiaries.

Noah Weisberg

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