Estate litigation is often expensive. However, some relief may be found in Rule 76 (simplified procedure) and, in particular, its provisions for a summary trial. Rule 76 is an attempt to keep costs down by providing less procedure for modest claims of $50,000 or less, exclusive of interest and costs. Interestingly, the plaintiff can opt to proceed by way of the simplified procedures for a claim exceeding $50,000, as long as the defendant does not object. If the defendant does object, the claim proceeds by the ordinary procedure.
Under Rule 76, examinations for discovery, or cross-examinations of a deponent on an affidavit filed on a motion, are not allowed. However, parties are required to include in their affidavit of documents a list of the names and addresses of persons who might reasonably be expected to have knowledge of transactions or occurrences at issue in the action. This added requirement is designed to disclose information that the parties might have otherwise discovered during an examination for discovery.
Under the simplified procedures, the parties may agree that the trial shall be an ordinary trial or a summary trial. If the parties cannot agree, the pre-trial conference judge or master can decide what mode of trial is appropriate. The procedure for a summary trial is as follows (Rule 76.12):
1. Evidence-in-chief is to be adduced by affidavit, not orally.
2. The opposing party may cross-examine the deponent orally, which can be followed by oral re-examination. Oral re-examination is limited to 10 minutes.
3. All of a party's cross-examinations can take no more than 50 minutes.
4. Each party is entitled to make oral closing arguments of not more than 45 minutes.
5. The trial judge may extend the time limits set out above.
In the estate context, the parties should consider utilizing the simplified procedure if they are looking for a relatively quick resolution or want to contain their legal costs. By reducing the overall costs of the litigation, a party can also reduce the amount that they may have to pay to the winning party should they ultimately lose at trial. The parties opted to proceed by way of summary trial in
McDougald Estate v. Gooderham [2003] O.J. No. 3106 (S.C.J), affirmed at [2005] O.J. No. 2432 (C.A.). During the lifetime of Headley Maude McDougald (the testator), her attorneys for property sold 640 South Ocean Boulevard, Palm Beach, Florida (the "Property") pursuant to a Power of Attorney. The Property was subject to a specific bequest in Mrs. McDougald's Will. The parties sought direction from the court as to whether the proceeds of that sale adeemed and became part of the residue at the date of death or whether section 36 (the anti-ademption section) of the
Substitute Decisions Act, 1992 applied to prevent ademption. The doctrine of ademption is a common law rule dating back to the 18th century. Ademption occurs whenever a testator makes a bequest of a specific piece of property that is not found among the testator's assets at the time of his or her death. In such a case, the bequest is said to have adeemed and the bequest simply fails on the basis that "the thing meant to be given is gone". Any proceeds from a disposition of the property fall into the residue of the estate, unless the testator has indicated in his or her Will that the bequest includes any such proceeds. In 1996, Mrs. McDougald had three attorneys managing her estate pursuant to a Power of Attorney.
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