Tag: Notice of Objection
Re Crowley Estate, 2021 ONSC 582, raises an interesting question surrounding the potential impact of counsel missing a procedural deadline in association with a Notice of Objection to the issuance of a Certificate of Appointment (i.e. probate), and whether missing such a deadline is fatal to the Objector’s ability to generally proceed with a challenge to the Will.
The Notice of Objection process is governed by rule 75.03 of the Rules of Civil Procedure. It generally provides that at any time before the issuance of a Certificate of Appointment any individual who appears to have a financial in the estate may file a “Notice of Objection” to the issuance of a Certificate of Appointment. The impact of filing of the Certificate of Appointment is to in effect to pause the probate process, with the applicant Estate Trustee being required to vacate and/or deal with the Notice of Objection before probate can be issued. The process by which the Notice of Objection is generally dealt with is that upon being advised of the Notice of Objection the Estate Trustee is to serve a “Notice to Objector” upon the Objector in accordance with rule 75.03(4), which then provides the Objector with 20 days from the date on which they are served with the Notice to Objector to serve and file a “Notice of Appearance”. If the Notice of Appearance is served by the deadline, the matter proceeds to a motion for directions in accordance with rule 75.03(6), where the court would be asked to provide directions regarding how the objections that were raised are to be adjudicated before the court. If no “Notice of Appearance” is filed by the deadline the Notice of Objection is automatically vacated, and the probate application may proceed as if no Notice of Objection had been filed.
In Re Crowley Estate, the Objector filed a Notice of Objection to the issuance of probate, and was in turn served with a Notice to Objector by the Applicant. The date on which the Objector was served with the Notice to Objector was November 20, 2020, which would have resulted in a deadline of December 10, 2020 for the Objector to serve the Notice of Appearance. The Notice of Appearance was not served however by the Objector until December 15, 2020. The matter was directed by the Registrar to a Judge, who in turn asked the parties to make written submissions regarding the matter. The Applicant’s lawyer took the position that rule 75.03 was “unforgiving” with respect to its deadlines, and that as the Objector had missed the deadline to serve the Notice of Appearance the court was now required to proceed with the probate application as if no Notice of Objection had been filed. Objector’s counsel advised that the reason for the missed deadline was due to health related concerns surrounding COVID-19, appearing to note in any event that even if the Notice of Objection was vacated the Objector would be proceeding with a challenge to the validity of the Will, noting that the Objector had subsequently commenced a separate Application to address the concerns surrounding the validity of the Will on January 7, 2021.
The court ultimately extended the deadline for the Objector to file the Notice of Appearance under rule 3.02, which allows the court to extend any time prescribed by the rules on such terms as are just. In extending the deadline, Justice Boswell notes that the Objector clearly always intended to pursue the objection, and that there is no clear prejudice to allowing the extension. Perhaps interestingly however, although the comment does not appear to have played a decisive role in the final ruling, Justice Boswell references that even if the Certificate of Appointment was issued the Objector would likely have been at liberty to seek the return the Certificate of Appointment under rule 75.05, appearing to give credence to the Objector’s position that they would have been at liberty to proceed with their challenge to the validity of the Will regardless of the missed deadline for the Notice of Objection.
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A testator appointed you as Estate Trustee of an Estate and a beneficiary filed a Notice of Objection to your appointment. What to do?
Typically, a Notice of Objection to an appointment of an Estate Trustee means that their authority is challenged such that before the administration of the Estate can be addressed, the Notice of Objection must be resolved, first and foremost.
Whereas in the case of a Notice of Objection, the party having filed it, is likely to commence a court proceeding to substantiate his or her claims, that is not always the case. As such, there are a couple of things that an Estate Trustee can do to force the Objector to move forward, in order to ultimately address the resolution of the objection.
- File a Notice to Objector
In accordance with Rule 75.03(4), an Estate Trustee can serve a Notice to Objector and file it with proof of service with the Court.
If the Objector does not serve and file a Notice of Appearance within 20 days of being served with a Notice to Objector, the Estate Trustee’s Application for a Certificate of Appointment is to proceed as if the Notice of Objection had not been filed.
If a Notice of Appearance is served on the Estate Trustee, they have 30 days to bring a motion for directions before the Court and if they do not do so, the Objector may seek directions, as well.
Essentially, the effect of a Notice to Objector is forcing the Objector to commence a claim or else abandon his or her objections.
- Commence an Application or Motion to propound the testator’s Will
Another option that exists for an Estate Trustee is simply skipping the steps that would follow the service of a Notice to Objector and seeking the directions of the Court, in accordance with Rules 14.05 and 75.06 of the Rules of Civil Procedure.
In this case, the Estate Trustee becomes the party commencing a court proceeding such that the costs associated with such a step ought to be considered, before proceeding. It is important to note, however, that proceeding with the first option will not necessarily save on legal costs to be incurred, if the Objector ultimately proceeds with a claim.
The option that is selected by an Estate Trustee will depend on the circumstances of each individual case such that it is important to consult with a lawyer as to which option is best.
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This week on Hull on Estates, Noah Weisberg and Sydney Osmar discuss Notices of Objection, Rule 25.11, and the court’s decision in Dessisa and Wolde v Demisie.
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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 validity 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.
Today on Hull on Estates, Jonathon Kappy and Josh Eisen discuss the issue of standing to object to a will and motions to have notices of objection removed.
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On the way into the office on the GO Train a couple of weeks back, an advertisement caught my eye. The “Book of the Month” was the unlikely titled “A Short History of Tractors in Ukrainian” by Marina Lewycka. Usually, I am not one for finding a good read from an advertisement in the newspaper, even though this one was apparently short-listed for the Mann Booker Prize 2005 (I am a sucker for anything that wins awards). However, this book (which I hasten to add I have not read) nonetheless caught the eye of this estate litigator with the following synopsis (culled from the Penguin website):
“For years two sisters have had as little to do with each other as possible…But now they had better learn how to get along, because since their mother’s death, their aging father has been sliding into his second childhood, and an alarming new woman has just entered his life. Valentina, a bosomy young synthetic blonde seems to think their father is much richer than he is and she is keen to see that he leaves this world with as little money to his name as possible. If the sisters don’t stop her no one will.”
I don’t know if Valentina marries the father, or whether he demands a marriage contract or whether the sisters file a Notice of Objection after their father’s death to challenge his new will. If the author’s audience is anyone other than estate lawyers, I expect these concerns don’t figure prominently in the plot. If nothing else, Ms. Lewycka joins the ranks of Dickens, Grisham, and others as authors who recognize the universal appeal of an estate fight…
David M. Smith