The Limitations of a Notice of Contestation
Sections 44 and 45 of the Estates Act provide a summary procedure for the determination of claims and demands against estates. Certainly in my experience, this procedure would appear to be relatively seldom used. However, the possibly draconian effect of a Notice of Contestation is an important consideration for any solicitor whose client is served with such Notice in response to a claim.
In Omiciuolo (Estate Trustee of) v. Pasco, the Court of Appeal considered whether a Notice of Contestation could be employed as a tactic for defeating a support claim made against an estate pursuant to the provisions of Part V of the Succession Law Reform Act. Under sections 44 and 45 of the Estates Act, where an estate trustee is served with a "claim or demand" against the estate, the claimant may be served with a Notice of Contestation in writing. A solicitor acting for such a claimant has an onerous duty to ensure that, if his or her client is served with a Notice of Contestation, appropriate steps are taken to advance the claim as required. If not, the claimant is "deemed to have abandoned the claim and it is forever barred."
In Omiciuolo, after considering various authorities, the Court determined that "the respondent's claims for declaratory relief, which is the nature of her claim under the SLRA as well as her other claims arising from her relationship as a spouse, do not fall within the meaning of a "claim or demand" under ss. 44 and 45 of the Estates Act."
David M. Smith
