Ancillary Grants, Between the Cracks
The Rules of Civil Procedure are a wonderful resource, and provide guidance as to, among other things, the types of applications that can be brought when someone wants to have an estate trustee appointed in Ontario in unusual circumstances. For instance:
(a) where there is an estate trustee appointed with or without a Will in the United Kingdom or in a province in Canada (outside of Ontario), an application is to be made for Confirmation by Resealing of Appointment of Estate Trustee;
(b) where there is a foreign estate trustee and no Will, an application is to be made for a Certificate of Appointment of Foreign Estate Trustee’s Nominee as Estate Trustee Without a Will; and
(c) where there is a foreign estate trustee with a Will, and the applicant was appointed by a court having jurisdiction outside Ontario, other than a jurisdiction referred to in (a) above, an application is to be made for a Certificate of Ancillary Appointment of Estate Trustee.
What the Rules don’t speak to, however, is when you have a Will and a foreign grant of probate with a Will, but no estate trustee is named in the Will or appointed in the foreign grant. I would imagine this is a rare occurrence, yet I am currently facing that very situation.
I have chosen to address this situation by applying for an ancillary grant, as that seems to be the closest applicable Rule to this fact scenario. However, the application is being accompanied by a motion record wherein we explain the circumstances of our case and seek a court order that a person in Ontario (an individual or trust company, as the case may be) be granted a Certificate of Ancillary Appointment of Estate Trustee.
I hope this will satisfy the court, and will let you know the results!
Have a great day,
Natalia Angelini
Natalia R. Angelini - Click here for more information on Natalia Angelini.
