Contempt Motions and Estate Litigation - Part IV
One of the most important tasks of an estate trustee, and one which causes many disputes, is the proper keeping of the accounts. Rule 74.17 of the Rules of Civil Procedure requires that estate trustees keep accurate records of the assets and transactions of the estate and governs the form of accounts that estate trustees and others are expected to keep, detailing the information to be included and how it should be presented. Rule 74.18 governs the actual application of the estate trustee to pass his or her accounts.
Under Rule 74.01 estate trustee means an executor, administrator or administer with a will annexed.
Rules 74.17 and 74.18 also apply, with necessary modifications, to accounts of trustees other than estate trustees, persons acting under a power of attorney, guardians of property of mentally incapable persons, guardians of the property of a minor, and persons having similar duties who are directed by the court to prepare accounts relating to the management of assets or money.
With respect to an estate, where an estate trustee has refused or failed to bring an application to account, any person with a financial interest in the estate, may, pursuant to Rule 74.15, move without notice for an order requiring an estate trustee to pass his or her accounts within a certain time period. This ex parte order must then be served by personal service, by an alternative to personal service or as the court directs.
If the time period set out in the order within which to bring the application to pass accounts is unreasonable or the estate trustee cannot, for other reasons, prepare the accounts in the time period allotted, the estate trustee can bring a motion under Rule 59.06 of the Rules of Civil Procedure to vary the order.
If the estate trustee refuses or fails to obey the order to pass accounts or does not prepare the accounts properly, the estate trustee may be the subject of a contempt motion. Having said that, the court may be reluctant to make an order for contempt simply because the accounts were not prepared within the strict time period ordered or were in the wrong form when initially prepared, in the absence of aggravating circumstances. The court might simply decide to extend the time period within which to bring the application to pass accounts and/or properly prepare the accounts.
In deciding whether to bring a contempt motion, counsel should consider whether bringing a motion at a certain time best achieves the desired end. Perhaps, the appropriate action is to bring a motion for directions regarding the outstanding order.
In tomorrow’s blog I will discuss several cases involving contempt motions in an estate context.
Have a great day, Craig.
Under Rule 74.01 estate trustee means an executor, administrator or administer with a will annexed.
Rules 74.17 and 74.18 also apply, with necessary modifications, to accounts of trustees other than estate trustees, persons acting under a power of attorney, guardians of property of mentally incapable persons, guardians of the property of a minor, and persons having similar duties who are directed by the court to prepare accounts relating to the management of assets or money.
With respect to an estate, where an estate trustee has refused or failed to bring an application to account, any person with a financial interest in the estate, may, pursuant to Rule 74.15, move without notice for an order requiring an estate trustee to pass his or her accounts within a certain time period. This ex parte order must then be served by personal service, by an alternative to personal service or as the court directs.
If the time period set out in the order within which to bring the application to pass accounts is unreasonable or the estate trustee cannot, for other reasons, prepare the accounts in the time period allotted, the estate trustee can bring a motion under Rule 59.06 of the Rules of Civil Procedure to vary the order.
If the estate trustee refuses or fails to obey the order to pass accounts or does not prepare the accounts properly, the estate trustee may be the subject of a contempt motion. Having said that, the court may be reluctant to make an order for contempt simply because the accounts were not prepared within the strict time period ordered or were in the wrong form when initially prepared, in the absence of aggravating circumstances. The court might simply decide to extend the time period within which to bring the application to pass accounts and/or properly prepare the accounts.
In deciding whether to bring a contempt motion, counsel should consider whether bringing a motion at a certain time best achieves the desired end. Perhaps, the appropriate action is to bring a motion for directions regarding the outstanding order.
In tomorrow’s blog I will discuss several cases involving contempt motions in an estate context.
Have a great day, Craig.
