Tag: rule 74.18
In the Estate of Divina Damm the Court answers the following question – what form of accounts must a guardian of property use when filing an application to pass accounts?
The facts in Re Damm Estate are not remarkable. A guardian of property commenced an application to pass accounts in accordance with Rule 74.18 of the Rules of Civil Procedure seeking court approval of her accounts. No objections arose with respect to the accounts, such that the guardian proceeded to file the application ‘over the counter’ as an unopposed application to pass accounts.
Notwithstanding that there were no objections, the Court refused to approve the accounts. The Court was concerned with the lack of detail and itemization in the entries, as well as the failure to comply with Rule 74.17. The judge tried to “…link all numbers listed in the draft judgment with information presented in the accounts but [was] unable to do so – because the accounts are not in proper form”.
Interestingly, the judge considered whether smaller estates should be permitted to file accounts in a simple format, but noted that it was for the Legislature and the Rules Committee to consider.
Accordingly, the Court directed the guardian to re-serve and re-file the accounts prepared in compliance with Rule 74.17.
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As discussed in yesterday’s post, a new regulation has been filed that provides for changes to the Rules of Civil Procedure, affecting, among other things, the practice on Applications for Certificates of Appointment of Estate Trustee and mandatory mediation of estates matters. The changes will also affect Applications to Pass Accounts when most of the operative provisions in the new regulation come into effect on January 1, 2016.
One of the amendments clarifies the rules for service where there is a person under disability with an interest in the estate, who is represented by an attorney for property or guardian of property. The Rules will clarify that an attorney or guardian will need to be served with the application materials.
Another change relates to timing of objections. A Notice of Objection to Accounts will need to be served and filed with proof of service at least 35 days before the hearing date specified in the notice of application. The current requirement is 30 days before the hearing date.
A new form has been introduced that can be filed in response to an Application to Pass Accounts – a Request for Further Notice in Passing of Accounts (Form 74.45.1). This Request entitles the person who files it, unless the Court orders otherwise, to receive notice of any further steps, to receive copies of any further documents, and to file materials relating to costs. In the event of a hearing, it also entitles the person filing it to be heard, to examine witnesses, and to cross-examine on affidavits, but only with respect to a request for increased costs.
The procedure for seeking costs on an Application to Pass Accounts has changed as well. This procedure was revised only a few years ago and the new revisions clarify and streamline the procedure further. Filing requirements and timing are set to change as of January 2016, so care will have to be taken to ensure that the correct procedures are being followed.
New subrules to be introduced under Rule 74.18 will set out the Court’s authority to order a trial and to provide directions with respect to its conduct at the hearing of an Application to Pass Accounts. The Court can also order a mediation under the new Rule 75.2, even in places where mandatory mediation under Rule 75.1 does not apply.
As January approaches, it’s important to be mindful of these changes in the Rules.