Orders Giving Directions in the Context of a Will Challenge - Hull on Estates Episode #215
Listen to: Orders Giving Directions in the Context of a Will Challenge
This week on Hull on Estates, Craig Vander Zee and Nadia Harasymowycz discuss orders giving directions in the context of a will challenge. A will challenge offers an opportunity at the beginning of a case to assemble the evidence and consider how it will be dealt with going forward. Things to consider include:
• Is mediation required?
• What evidence is known?
• What evidence needs to be obtained?
• How is that all going to happen?
There are also factors to be considered at the beginning such as projected costs and the value of the estate either known to be or thought to be.
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Craig R. Vander Zee - Click here for more information on Craig Vander Zee.
Nadia M. Harasymowycz - Click here for more information on Nadia Harasymowycz.
Nadia Harasymowycz: Hello and welcome to Hull on Estates. You’re listening to episode 214 on Tuesday, July 27, 2010.
Welcome to Hull on Estates, a series of podcasts for the Canadian legal community dealing with issues and insights surrounding estate planning in Canada. Hosted by the lawyers of
Craig Vander Zee: Hi and welcome to another episode on Hull on Estates. I’m Craig Vander Zee.
Nadia Harasymowycz: And I’m Nadia Harasymowycz.
Craig Vander Zee: And if you want to be heard on Hull on Estates, you can participate by leaving us a comment. Email us at hull.lawyers@gmail.com or you can visit our blog at estatelaw.hullandhull.com. Hello, Nadia.
Nadia Harasymowycz: Hi Craig, how are you?
Craig Vander Zee: Good thanks. How have you been?
Nadia Harasymowycz: I’ve been great.
Craig Vander Zee: This is our first time we’ve had the opportunity to podcast together. Did you get a chance to watch any of the Canadian Open on the weekend?
Nadia Harasymowycz: Unfortunately I didn’t, but I heard there was a little bit of excitement there.
Craig Vander Zee: Yeah, I had a chance to go down with my son on the weekend and it was…it was a really neat experience. It was a great golf course.
Nadia Harasymowycz: Yeah, it’s sound awesome.
Craig Vander Zee: However, we’re not here to talk about the Canadian Open or golf today. What Nadia and I thought that we would touch upon today or do a comment on again is Orders giving Directions in the context of a Will challenge. And the reason why they’re particularly important because they offer an opportunity to, at the beginning of the case, to marshall the evidence and consider how you want to deal with the matter going forward. You may want to marshall the evidence in a certain way. Is mediation a requirement, i.e., is it in Toronto, Ottawa or the Windsor area? Do you want to have a mediation even in the event it’s outside of that area? What evidence is known and what evidence needs to be obtained? And how is that all going to happen? And is it necessary to have an estate trustee during litigation? And how are we going to collect, manage and preserve the assets in the estate while the Will challenge is ongoing? So that’s certainly not an exhaustive list but it’s certainly a list of factors that one can consider at the beginning, all the while taking into consideration what the projected costs might be of the Will challenge and what the value of the estate is either known to be or thought to be.
Nadia Harasymowycz: Yeah, I think that when you get an Order for Directions, it provides not just the counsel of record and understanding of how things are gonna proceed but it also assists the clients in understanding how this matter is gonna be moving forward and what it is that they can anticipate in terms of the steps of the proceeding.
Craig Vander Zee: Well and while we’re talking about an Order giving Directions which is most commonly brought in terms of a Will challenge, under Rule 75 and more particularly Rule 75.06, I do, you know, always keep in mind what Orders for assistance are available under Rule 74.15 of the Rules of Civil Procedure. And while we’re not going through those today, those can be very helpful in respect of a Will challenge and the same as Section 9 of the Estates Act dealing with obtaining a copy of the Will in considering how you wish to move forward with a Will challenge. So always bearing that in mind as well. But moving on to the motion or application for an Order giving Directions, one of the things that you want to determine is, what is it that you want and what is it that you need. And Rule 75.06 says that anybody who appears to have a financial interest in an estate may apply for directions or move for directions in another proceeding under the Rule as to the procedure for bringing any matter forward with the Court. And an application for directions is to be served on all parties appearing to have a financial interest in the estate or as the Court directs, at least 10 days before the application or the motion. And parties can, in the appropriate circumstance, bring an application or motion on short notice if permitted by the Court. So that is first off deciding how…sorry, deciding who the parties are with a financial interest and ensuring that they’re all gonna be served.
Now quite apart from that consideration typically under Rule 75.06 ,the Court can order the issues to be decided, so that’s obviously a factor that you want to have considered, who the parties are, who’s going to be the plaintiff or defendant or who is going to be submitting the rights to the Court. It may very well be that a consideration has to be who is going to be served with the Order for Directions, are there third party examinations that need to be taken into consideration and perhaps parties need to be served, procedures for bringing the matter before the Court perhaps in a summary fashion if that’s appropriate, and whether the plaintiff is going to serve and file a Statement of Claim or whether it’s going to proceed by way of an affirmation and denial in terms of the issues and the Order giving Directions.
Also too as I mentioned earlier is considering the estate trustee during litigation. There are instances where it may not be necessary in a Will challenge to appoint an estate trustee during litigation where the assets can be dealt with by way of agreement and the approval of the Court. It could be that the assets are frozen with automatic payments to come out and with the agreement of the parties that certain payments are to be made. But, of course, that would all be subject to the position of the parties and the discretion of the Court. So it may very well be that you need an estate trustee during litigation. And again, reference to a mediation, and potentially how the matter is to be heard down the road. It can also cover off document exchange and disclosure and examinations as between the parties. So there is really no recipe per se to the Order giving Directions. It can be quite simple and straightforward and deal with several of those issues, depending on the nature of the file. Or it could be much more complex. Maybe there are assets in the estate that need to be dealt with and there needs to be an estate trustee during litigation to look specifically after those assets. And how are those assets going to be collected? And do any need to be sold to pay any debts? And maybe there’s tax issues that need to be dealt with immediately. So there are all those types of considerations that go into how you may want to deal with an Order giving Directions.
Nadia Harasymowycz: I think at the heart of the issue, though, when you delve into all these things that sound very complex is the specific facts of your file. And it doesn’t necessarily have to be this cumbersome but just advising your counsel of all the details of what’s going on and then you can come to a reasonable situation and figure out if you need a simple Order for Directions or something more.
Craig Vander Zee: Well and it may very well be that opposing counsel are contacted in respect of the directions if it’s known that there’s opposing counsel and who the parties are, and if they’re all represented or not. So those are all factors that go into it. And again, when you’re dealing with the parties, those with a financial interest, there are some other considerations that you want to keep in the back of your mind as well, which is, are people self-represented? Often in Will challenges or perhaps more commonly than in commercial litigation, people are self-represented given the potential interest in the estate, even sometimes in a Will challenge. It could be that the judge may allow a self-represented party certain indulgences if they’re not represented. And as counsel, you would certainly want to be cognizant that that may happen.
Rule 15 of the Rules of Civil Procedure deals with various aspects of representation by a solicitor. And also the Rules deal with litigation guardians. And if a person is going to be acting as a litigation guardian for another, then that individual needs to have a solicitor. And there are certain rules in place for dealing with litigation guardians in the Rules of Civil Procedure. Also more specifically Rule 7 of the Rules of Civil Procedure regulates the bringing of proceedings by or against parties under disability and deals specifically in the context of where there is a person under disability who is a plaintiff or an applicant or a defendant or a respondent and who will be the litigation in that context. And if it’s in an estate or trust matter and there is a person under disability that is a minor, then the Children’s Lawyer shall be appointed as the litigation guardian unless the Court orders otherwise.
And again, it’s always important to keep in mind Rule 10 of the Rules of Civil Procedure as required. That deals with the situation that can arise where the outcome of the litigation may impact on persons who are not before the Court or who cannot be brought into the litigation because they are unborn or unascertained or because they cannot be readily found or served. So there’s that context as well. So there are the Rules in the Rules of Civil Procedure that assist with respect to these types of issues. And then again, with the estate trustee during litigation the considerations that one might have are is it going to be an individual? Is it going to be a financial institution? The benefit of having a trust company would be that there is no bond requirement to be posted by the trust company in being appointed as the estate trustee during litigation. That can, indeed, be a factor if it’s an individual and it may be that there needs to be dispensation sought and obtained and hopefully granted in certain cases, dispensing with the requirement for a bond with respect to an individual who wishes to be appointed as the estate trustee during litigation. And the estate trustee during litigation will file the appropriate supporting documentation even with that Order to actually obtain the Certificate.
Again, in thinking of things for the estate trustee during litigation, you may wish to consider whether they’re going to need agents? Will they need to be able to retain real estate agents to sell properties? Will they need to retain lawyers? Will they need to be able to retain accountants or forensic accountants to be able to do analysis of the assets of the estate? And in doing so really what you’re doing is you’re considering the authority within which the estate trustee is going to act. So from that perspective, you’d want to have that consideration thought of prior to the actual Order giving Directions so that provisions…appropriate provisions as necessary and as applicable can be included in the Order giving Directions.
And then another issue that can be considered is to plead or not to plead. Is it satisfactory in the circumstances to have the issues listed? Or is it a certain case where a Statement of Claim and Statement of Defence is necessary? So with respect to that, each case is different and it may be in certain cases given the value of the estate and the expenses involved and the circumstance that it’s not necessary to have pleadings. And in other cases it may be necessary to have pleadings. So that is something that you’d want to think of as well.
Today, Nadia, and I guess I apologize for doing most of the talking today…
Nadia Harasymowycz: No problem. It’s always good to hear a concise list of things that are needed.
Craig Vander Zee: We were not intending to have an exhausted list of considerations by any means. But, you know, to highlight some issues and some of the rules in place for an Order giving Directions regarding a Will challenge. And, of course, each of the circumstances will be dependent…will be different depending on the facts, the parties, the specific issues and the nature of the specific allegations as well. So, you know, today we were just really intending on covering in a summary fashion some of the issues that can be considered in dealing with an Order giving Directions in the context of a Will challenge.
Nadia Harasymowycz: Absolutely. I think it gives everyone a good start, if you have any questions. And I think that brings us to the end of this week’s discussion. Thanks for listening and thanks for joining me today, Craig.
Craig Vander Zee: It was a pleasure, Nadia, and I look forward to podcasting with you again.
Nadia Harasymowycz: And we look forward to hearing from our listeners. I invite you to send us an email at hull.lawyers@gmail.com and be sure to visit our blog at estatelaw.hullandhull.com where you’ll find even more information and discussion on today’s practice of estate law. We hope that you enjoyed the show. I’m Nadia Harasymowycz.
Craig Vander Zee: And I’m Craig Vander Zee. And until next week, so long.
This has been Hull on Estates with the lawyers of Hull & Hull. The podcast you have been listening to has been provided as an information service. It is a summary of current legal issues in estates and estate planning. It is not legal advice and you are reminded to always talk with a legal professional regarding your specific circumstances.
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