Listen to Will Challenge Litigation - Part 2

This week on Hull on Estate and Succession Planning, Ian and Suzana continue their discussion on the Will Challenge Process, step by step.

They cover how a comprehensive preliminary investigation can help litigation and discuss how a motion of claim is filed to set the stage to move forward with a trial.

Core documents that accompany these stages are:

The next stage is the discovery process and will be the topic that gets next week's podcast off to a start.

If you have any comments, send us an email at hullandhull@gmail.com or call us on the comment line at 206-457-1985 or leave a comment on our blog.

Will Challenge Litigation - Part 2 - Hull on Estate and Succession Planning

Posted on August 26, 2008 by Hull & Hull LLP

Welcome to Hull on Estate and Succession Planning, a series of podcasts hosted by Ian Hull and Suzana Popovic-Montag, that will provide information and insights into estate planning in Canada. From the offices of Hull Estate Mediation in Toronto, here are Ian and Suzana.

Suzana Popovic-Montag: Hi, and welcome to Hull on Estate and Succession Planning. You’re listening, and some of you may be watching, Episode #127 of our podcast on Tuesday, August 26^th, 2008.

Hi there, Ian. 

Ian Hull: Hi Suzana.

Suzana Popovic-Montag: How are you today?

Ian Hull: Just great, thanks.

Suzana Popovic-Montag: That’s good

Ian Hull: Looking forward to our second attempt at the video casting combined with the podcasting. So we want to turn back to this whole Will challenge process. And in our last podcast, we were talking about situations where people come to see us where they feel that they have been left out of the Will or those who come to see us who want to uphold the Will. And today we’re going to talk about the process itself. Now, we ended our last podcast talking about Will challenges in the context of what were the importance of the testamentary documents, what were the Wills and why we needed to get them under control. Today we’re going to talk about the process, the litigation process. Now interestingly enough, while we practice in downtown Toronto in Canada here, the process itself is generally very consistent throughout different jurisdictions. And so what we want to talk a little bit about today is the global litigation process. And for those of you watching, we’ve got our Smart Board up and running and we’re going to spend some time walking through our chart that we find very helpful with our clients to talk about the process itself.

Suzana Popovic-Montag: And the very first step for those of you who can see it is the preliminary investigation stage. And this is where we try to find the basic known facts. And during our last podcast, we talked about things like developing the family tree, developing and understanding of the background of who the deceased really was, what their life was like, what the circumstances surrounding his or her Will making was all about. And so this is where you start in the whole process by getting the story, getting an understanding of the players and then we take it to the next level.

Ian Hull: And so we’re working through our chart here. We’ve started with our preliminary facts, alright. And the investigation into this. Now this stage has to be done fairly comprehensively. We want to get the information at the outset, but we’ll need to then go back and do some digging. And sometimes follow-up with witnesses or get a better sense of the type of evidence that’s out there. Because again, with a Will challenge, we’re mostly focusing on questions of capacity, questions of undue influence, pressuring the elderly person or the person who is doing the Will to do something that you may or may not think they should be doing. 

The next step is setting the stage for the litigation. Now here in Ontario, we typically do it by way of a motion. But it doesn’t really matter. What happens in all jurisdictions is that the claim gets commenced, either by a Statement of Claim or a writ or some document that’s filed with the Court that starts the process. And as I say, in Ontario, we actually bring a motion, we go to the Court and set the stage, setting out what legal issues are at stake in the process.

Suzana Popovic-Montag: And, of course, the ultimate goal of a motion for directions is to obtain an Order giving directions. And we tell clients that that really is a map work of the litigation process, it gives the timelines for when things will be done, it gives authority to individuals to collect some of the documentation that is crucial for a Will challenge and it most often deals with vesting someone with authority to deal with the estate, pending the entire litigation process.

Ian Hull: So we’ve got a couple of things here. Because if we remember, when we started this litigation, it actually stops the administration of the estate, it puts everything on hold. So that’s no good. There’s bills to be paid, the funeral expenses, there’s things to be done that have to be done no matter who wins or loses this lawsuit. So at the motion for direction stage, getting the Order, one of the things we get and we’re going to come back to, is that you talk about who has the authority. We’re going to talk about what we call here in Ontario an estate trustee during litigation. But before we come to that, Suzana is going to talk about that, is I just want to mention that at this Order we will get, let’s talk a little bit about what we’re going to get at that Order. And that Order, we’ve already said, is going to set the stage, who’s challenging the Will, who’s defending the Will, and all those with a financial interest are put on notice. It also gives us expansive roles of an ability to get documents organized, to do investigation. Coming back to this, we talked about the preliminary investigation. But we can’t do a preliminary investigation properly without getting some of the core documents.

Now Suzana, what are some of the core documents that we’d be looking for at this disclosure stage at this point?

Suzana Popovic-Montag: Well typically, Ian, those documents will include three different types of information or evidence that we’re going to try to get so that we can establish our Will challenge and proceed with it. Firstly, there’s the medical records; secondly there’s the solicitor’s notes; and then thirdly, there is in many cases the financial disclosure, the financial records that will help build a Will challenge case as well.

Ian Hull: So in the course of getting this Order, we will want to have as expansive as possible, so that we can pull in as much of the relevant documentation as we can. And we’ll often take sort of a three year window, going back three years, maybe going forward three years, in that range. Now sometimes each case is different, but we’ll go back and get all of the medical records of the individual, especially if we are alleging capacity and so on. So now let’s talk about, so presumably we can get together all of this documentation. Once we get the Order, we send it to these third parties like hospitals and we had a case recently we sent them to the dentist because this gentleman had seen a dentist many times right around the time of the Will. You wouldn’t always think of that individual as being someone to be involved with. 

So once we get the disclosure organized in the Order, the other thing you mention Suzana, was the appointment of someone with authority, and which we call an estate trustee during litigation. But forget our terminology, it’s someone who has authority, a litigation trustee is essentially what happens.

Suzana Popovic-Montag: And the reason we need this individual is because as Ian just said, as soon as you start a Will challenge, the administration is essentially frozen. So you are actually challenging a Will that may or may not appoint an executor. And as soon as you do that, then that appointment is in question. So we need to vest someone with authority to act on behalf of the estate in the meantime, and that’s this litigation administrator.  The old terminology used to be just an administrator, an individual who can act on behalf of the estate.

Ian Hull: Okay, Suzana, the tough question is though who will take this job on and on what circumstances do they typically take it on?

Suzana Popovic-Montag: Well that’s a good question, Ian and it’s usually a very contentious one as well because in many situations, the person who has been named will try to hold onto their job as the executor. That may or may not work, depending on how contentious that appointment is and the Will challenge itself. There’s always an opportunity to have a neutral third party put in, and that really is based on the cases that have been resolved out there, that’s the Court’s preference. To put someone in who has no vested interest in it but will administer the estate during the course of the litigation.

Ian Hull: And often that entity is a trust company. We see that a lot of times because they are professionally trained and ready to step in. Professionals: accountants, lawyers, they can sometimes come in depending on the pricing and things like that, depending on the kind of assets. We had an interesting case where we had a tremendous piece of real estate that needed to be developed, it required someone with real estate expertise, development expertise. So all the parties sat around and said well, we’re not sure who’s going to get this, but we do know that we want to sell it and we need someone well qualified to sell it, we can’t just put it in the hands of just anyone. So those are the kind of choices you have.

Alright, we’re going to talk now about discoveries. And that is the next stage before we wind up this podcast today. And that is the process where you make a real strategic call. We’re going to talk about discoveries in mediation, what the best steps are to take and when to take them, and investigate into that sort of, those important timetables. But we’ll save that for our next podcast. 

Thanks very much, Suzana.

Suzana Popovic-Montag: Thanks to you, too, Ian.

You’ve been listening to Hull on Estate and Succession Planning with Ian Hull and Suzana Popovic-Montag. 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.

To listen to other Hull On podcasts, or to leave any questions or comments, please visit our website at hullestatemediation.com.

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This week on Hull on Estates and Succession Planning, Ian and Suzana finish up the discussion on the question of accounting by reviewing deductions from compensation and briefly sum up the procedure of the passing of accounts.

Comments? Send us an email at hullandhull@gmail.com, call us on the comment line at 206-457-1985, or leave us a comment on the Hull on Estate and Succession Planning blog.

Deductions from Compensation - Hull on Estate and Succession Planning Podcast #125

Posted on August 12, 2008 by Hull & Hull LLP

Suzana Popovic-Montag: Hi, and welcome to Hull on Estate and Succession Planning. You’re listening to Episode #125 of our podcast on Tuesday, August 12^th, 2008.

Welcome to Hull on Estate and Succession Planning, a series of podcasts hosted by Ian Hull and Suzana Popovic-Montag, that will provide information and insights into estate planning in Canada. From the offices of Hull Estate Mediation in Toronto, Ontario, Canada, here are Ian and Suzana.

Suzana Popovic-Montag: Hi there, Ian.

Ian Hull:  Hi, Suzana. How are you doing?

Suzana Popovic-Montag: I’m good thank you, how are you?

Ian Hull: Just great. We’re having some fun with this whole question of accounting, and I think I’ve done the numbers, and I think we’re almost done. But before we go through our podcast today, let’s remind everyone, please feel free to call in on our call-in number and our call-in number is of course, 206-457-1985.

Suzana Popovic-Montag: Or send us an e-mail at hullandhull@gmail.com or of course, you can visit our blog at estatelaw.hullandhull.com as well. 

Ian Hull: So before we launch into the substantive podcast today, I just wanted to do a couple of things. One, I want to deal with an e-mail that came in and another is I want to just welcome people to listen and look at the, last week we enjoyed Jordan Atin who is our associate counsel here, our Senior Associate Counsel, and he was on Canada AM for four days in a row talking about family feuds and the link to the webpage where CTV is still running the streaming is worth looking at, and we’ll make sure that’s in our show notes.  But Jordan had a great opportunity to talk about family feuds and sort of the issues that arise out of his book, “The Family War” which is co-written by Les Kotzer and of course, my good friend, Barry Fish.

Alright, so we were talking about some of the e-mails. And we had two e-mails last week come in. Both of them were semi-related and so I’m sort of going to merge the two of them together. And the question really comes down to this:  What are we talking about with The Shoebox Effect? And what we’ve been mentioning in the past and what we’re going to talk a little bit about today, because part of our wind-up is the importance of vouchers, is The Shoebox Effect is this. When you are a trustee, no matter what you think, no matter what you do, you will be someday possibly asked to show your receipts and that’s all I’m saying The Shoebox Effect is. Make sure you keep receipts, even if it’s in a shoebox. Your lawyer or your accountant can work on the presentation of it when you ultimately have to go to Court, but keep the receipts. So that was the two questions that came in, actually, both were from different parts of Canada but asking about the same question. So I’m not going to dwell on it other than that and say that when we’re winding up our comments on accounting, please, please, please keep your receipts if you’re a fiduciary.

Suzana Popovic-Montag: And just to add one thought to that, Ian, I would also suggest that it’s really helpful to make sure that you document as much as possible everything that you do as a trustee.  And when it comes to exercising your discretion, and if particularly the Will or the trust document allows you to have a broad discretion, to write down your thoughts or your reasoning or the underlying reasons that you decided to do something or not do something and include that in the shoebox that you end up bringing to a lawyer one day possibly.

Ian Hull: That’s a great suggestion and it comes down to, when we’re talking about getting paid for all of these efforts, the deductions from compensation that we briefly talked about in the last podcasts, what can you look to? So we talked about that you can get paid, say approximately 5% as a tariff, so to speak.  And we’ve talked about some of the things we’re going to knock you out from, but one of the easy deductions is the delineation between the executor’s work and lawyer’s work or accountant’s work. And that ties into your comment, Suzana, on docketing, keeping records beyond just the receipts that I talked about.

Suzana Popovic-Montag: And things for instance, like the preparation of tax returns, when fees are associated with that, depending on who’s preparing the tax returns and how much those fees are, that’s another thing that might possibly be a deduction from compensation if the trustee for instance is an accountant. And these are situations where a trustee is an accountant or a lawyer that you see most often, where these issues can arise.

Ian Hull: Alright, so another concern that we raise and probably the last deduction from compensation we’ll just mention now, is this whole idea of pre-taking compensation. Under Ontario legislation, if you’re a fiduciary or, as I say, a guardian under the Substitute Decisions Act, they actually allow you to pre-take your compensation, take before you’ve made your efforts. But we’ve talked about in the past the cases, and we’ve talked about them in the show notes as well, the case law that talks about Re: Knoch which we talked about in our previous podcast and others, and we want to be very, very careful about pre-taking, getting paid before you’ve done your work. So that’s an easy deduction.

Suzana Popovic-Montag: Ian, just a question that I find often gets asked is whether or not GST is actually payable on executor’s compensation. What are your thoughts about that?

Ian Hull: Well, that’s a great question and it’s a murky area of the law.  And what has happened in the past is you would typically have to look at it case by case. First and foremost, you have to look at the amount of the payment that the compensation is. If it is over $30,000 that you’re being paid in compensation, which could be the case because it’s typically a one-time payment, you may have to pay GST on that income as having rendered services. So it’s really case-by-case. Talk to your accountant, get good advice before you wrap up that issue, but that’s an excellent question and a really important heads-up for people who are accounting and doing compensation work.

Okay, I think we’ve pretty well covered off our accounting in the in-depth form and so we wanted to make sure that we stayed the course and came full circle to our sort of checklist that we’re trying to work through. And one of the things I will say is we’re hopefully going to be changing our format and trying to pick up a video feed for our podcasts which is in the process. Some technology glitches haven’t allowed for it to fall in just yet, but we’re going to be moving into some different topic areas. But one of the topic areas that we have to, I think, just sort of at least wrap up in a minimum way, is the process itself. We’ve talked about the passing of accounts process but let’s talk about the physical steps that are taken because many people don’t understand passing of accounts and what you can expect in the courtroom once we’ve got the Court format accounts.  And my introduction to this, by way of the fact that we’re going to be moving this into an audio, is that we’re going to have our own mini-series on this issue, where we’re really going to flush out these topics.  But I think its worthwhile talking about them briefly now, so that people understand what they’re going to get themselves into once they’ve got these beautifully created Court format accounts.

Suzana Popovic-Montag: And procedurally speaking, certainly here in Ontario, the Rules of Civil Procedure will govern what is included in an Application to pass the Court format accounts. And we started when, before we got into this discussion of how we would audit estate accounts or how to prepare a best kind of set of accounts in the circumstances, we talked about the fact that it’s all part of an application process.  And so there will be an actual Court date that’s assigned to the hearing for the return of the executor’s accounts, and you’ll serve a Notice of that application on all the beneficiaries together with, in many circumstances and many situations, a copy of the accounts as well. And the Rules themselves specifically provide what has to be in this Application record and I thought, Ian, it might be good to just sort of flush out some of those specific requirements.

Ian Hull: Alright. Well I think and it’s helpful because it’s not quite as daunting when you get the document itself thrown at you because, as I say, a lot of these accounts are passed in a non-contentious environment.  But it’s legal mumbo-jumbo to some people so you want to make sure you sort of know what you’re getting yourselves into when you get it. And the main document behind the accounts is the Affidavit verifying the accounts, they’re proving that you’re swearing to the truth of the accounts, and that’s the fiduciary sort of statement that says these accounts are true and accurate.

Suzana Popovic-Montag: And that Affidavit, as I say, is included in the record that is served upon everyone who has a financial interest in the estate. And financial interest in the estate I think we’ve talked about on previous podcasts, has a very broad meaning in the sense that even people with a contingent interest in an estate will be served with the accounts as well.

Ian Hull: And talking about service, we don’t want to forget that there may be government agencies that we have to serve, of course; the Office of the Children’s Lawyer should there be any minor child’s interests, or interests of those who are unborn and unascertained.  And without getting too technical about it, we just want to look at the trust document or the Will and see if there is a trust. And typically if there’s a trust, more often than not, almost certainly in fact, the Children’s Lawyer would be served, that’s the Office of the Children’s Lawyer.  And it’s different in each Ontario jurisdiction, but basically the lawyer in charge of minor interests. Another person to be concerned about serving is

Suzana Popovic-Montag: the Public Guardian and Trustee. That office would be served on behalf of any incapable beneficiaries of the estate. And so just like the Children’s Lawyer protects the minor, the unborn or the unascertained, the Public Guardian and Trustee here in Ontario will represent those incapable beneficiaries.

Ian Hull: So those are just things to keep a heads-up on so that you don’t get out of the box and miss a page of the application process by not putting important entities on notice. Obviously, we come back to our cardinal rule: Read the document, read the Will, read the trust and make sure you’ve served everyone named in that, but the Public Guardian and Trustee and the Office of the Children’s Lawyer, are two entities that aren’t necessarily named and quite often aren’t named, so just a heads-up. 

So I think that gives you sort of a sense of what the document itself, in a friendly environment will be, so I think we’ll wrap up today’s podcast and again reminding you, please feel free to e-mail at hullandhull, h u l l a n d h u l l @gmail.com.

Suzana Popovic-Montag: Or feel free to call and leave us an audio comment at 206-457-1985. Thanks very much, Ian.

Ian Hull: Thanks, Suzana.

You’ve been listening to Hull on Estate and Succession Planning with Ian Hull and Suzana Popovic-Montag. 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.

To listen to other Hull On podcasts, or to leave a question or comment, please visit our website at www.hullestatemediation.com.

Our theme music is UpTempo14 by Gary and is courtesy of the Podsafe Music Network.

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Posted on March 18^th, 2008 by Hull & Hull LLP

Paul Trudelle: Hello and welcome to Hull on Estates. You’re listening to Episode #102 on Tuesday, March 18^th, 2008.

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 Hull & Hull, the podcast will touch on some key considerations when planning estates and Wills.  Now, here are today’s hosts.

Paul Trudelle:  Hi, I’m Paul Trudelle.

Allan Socken: Hi, and I’m Allan Socken.

Paul Trudelle:  Hi Allen, how are you today?

Allan Socken:  I’m good, thank you. How are you Paul?

Paul Trudelle: Good, withstanding the winter?

Allan Socken: Yeah, hopefully it’s close to an end.

Paul Trudelle:  The end is in sight, we’re almost there. With respect to our podcast today and we’re now up into the triple digits, we thought we’d talk a bit about the deemed undertaking rule. The deemed undertaking rule is a rule that applies in litigation, it’s a common law rule, that talks about the use of evidence, and it’s now codified in the Rules of Civil Procedure.

Allan Socken:  I think it’s also just important to make mention that while this appears to be standard practice in all jurisdictions in Canada, it’s interesting to note that only P.E.I. and Ontario have this codified within our Rules of Practice.

Paul Trudelle:  Yeah, that is a bit strange, but we have it codified in Ontario and that’s the system that we’re working under, so we’re going to talk a bit about the rule as it applies in Ontario.  However, it should be noted that it probably applies to the same effect in other jurisdictions as well, being a common law rule that is now codified.

With respect to the purpose of the rule, it basically… the rule is set to limit the use that one can make use of when obtaining evidence in the litigation process.  And there’s a very good quote from the Ontario Court of Appeal decision of Goodman v. Rosi that talks about the basis upon which the rule exists or why it exists.

Allan Socken:  It basically says the principle is based on recognition of the general right of privacy which a person has with respect to his or her documents. The discovery process represents an intrusion on this right under the compulsory processes of the Court. The necessary corollary is that this intrusion should not be allowed for any purpose, other than that of securing justice in the proceeding in which the discovery takes place.

Paul Trudelle:  Right, and I think that’s a great quote and I think it summarizes the purpose of the rule quite well and quite succinctly … I guess, put another way or restated, if you’re going to be forced to the litigation table by someone and you’re forced to disclose your documents, the documents only need to be disclosed for that limited purpose and they shouldn’t be disclosed for the whole world to see or they shouldn’t be used in some other proceeding and come back to bite you that way.

Allan Socken:  I think also to point out, I think the purpose of the deemed undertaking rule as is set out in Rule 30.1.01 sub 1, is that you can only use evidentiary documents that relate to the discovery and inspection of property, medical examination and the like. That’s what the rule tries to capture. So, for example, if you are in Court and there’s evidence given, then that probably isn’t captured under the deemed undertaking rule.

Paul Trudelle:  That’s right. The principle of the rule is if you’re forced to disclose information in the litigation process before it gets to open Court, it’s that information that’s going to be protected by the deemed undertaking rule. And the rule sets out that the rule applies to evidence obtained under the rules relating to documentary discovery, Examination for Discovery, that’s of the parties and of witnesses as well, inspection of property, medical examination, written interrogatories if they are used, and even as far as examinations in aid of execution after judgment is obtained. So it is of limited application, however, in the context of litigation, it seems to protect most evidence that you are able to obtain from the other party or from the witnesses.

Allan Socken:  For example, for Will challenges, a lot of the time, it’s very standard to ask for complete disclosure of medical, financial and legal information.  And especially in the case of legal materials, when you do a Will challenge, it may be necessary or it may be an option for the client subsequent to the Will challenge or during the Will challenge, to want to pursue a negligence claim against the solicitor in certain circumstances.

Paul Trudelle:  That’s right, Allen. And I think that that’s very important from an estate point of view. The only way we are able to obtain evidence, usually from medical practitioners, and perhaps more importantly from solicitors, is through the litigation process. If that evidence is protected by the deemed undertaking rule, that’s going to have a significant impact on the rights of the parties to pursue those types of claims, and we’ll talk about that in a minute.

The substance of the rule, I think we should mention briefly, we talked about what evidence it applies to. With respect to the substance, that’s set out in the rule itself.  And the rule states that all parties and their counsel are deemed to undertake not to use evidence or information to which the rule applies, and we talked about that, for any purposes other than those of the proceeding in which the evidence was obtained. So that’s very limiting.  You can’t use it for any other purpose other than the purpose of the very litigation that’s before the Court. And that’s quite restrictive. Having said that, there are exceptions to that rule and perhaps we can talk about some of the exceptions that are set out in the rule itself.

Allan Socken:  Sure. Some of the exceptions are that the deemed undertaking rule does not apply to evidence that is filed with the Court. Similarly, it doesn’t apply to evidence that is given or referred to during the hearing, as well as information obtained from evidence regarding the evidence filed within the Court, or evidence that is given or referred to in the hearing.

Paul Trudelle:  That’s right. So once the material is aired in an open Court, then its open game and the parties are able to … the protection no longer applies. Similarly, if you obtain some information and it’s disclosed in open Court that leads to other information, that information isn’t protected either. There’s another exception that deals with using evidence to which the parties consent. So if you get the consent of the person with respect to the evidence that’s disclosed, then it can be used for another purpose.  Although if you’re going to be suing that person, it’s probably not likely you’re going to be getting their consent.

Allan Socken:  And I think another exception is the deemed undertaking rule doesn’t apply when the interests of justice outweigh the prejudices of the parties. I think that’s kind of an interesting exception, simply because it’s such a broad exception and it could probably capture a number of situations.

Paul Trudelle:  That’s right.  And to deal with that exception, you’d need to get an order of the Court allowing you to use that evidence for the ulterior purpose or for the purpose of the other proceeding. What you would need to do is show the Court that, just as the rule states, that the interests of justice outweigh any prejudice that would result to a party. That is often a sort of a way of saving yourself or allowing you to proceed with the action after the fact. If you obtain evidence through the examination process or the discovery process and there is no other way to get that, you may be able to argue that you have a legitimate interest in using that evidence for the purpose of the subsequent proceeding.

Allan Socken:  From your experience, Paul, is it easy to get that kind of order?

Paul Trudelle:  I think that that’s a very tough thing to do because I think that we have to look at the overriding purpose and the intrusive nature of the disclosure process. People are dragged to the table and forced to disclose their evidence, their documents.  And to allow that sort of fishing expedition to be used to commence another proceeding against another party, I think, is something that the Courts are not going to do lightly. Having said that, if there was no other way to get that evidence, or it’s clear that the evidence ought not to be protected, then the Court, I think, will make that type of an order and allow it to proceed. I think that’s still a very tough order to get, though.

Allan Socken:  Absolutely. I mean, because, I think, in most matters, certainly a Court would be very careful before it goes ahead and grants a rule or grants an order which basically prejudices a party in a certain way.

Paul Trudelle:  That’s right. With respect to the exceptions, there’s another exception.  You can use that evidence to impeach someone’s testimony in another proceeding. So the evidence, if it’s... documents are given in one proceeding, they can be used in another proceeding to impeach testimony. And that’s another exception as set out in the rules.

We were talking, or you mentioned before, the estates context and I think that’s what we should maybe touch on before we wrap up. In the estates context, we usually get an order in a Will challenge, that would allow the parties to obtain evidence on examination or through witnesses. That may be, for example, the evidence of a solicitor who prepared the Will and the instructions that were given to that solicitor. That information may be protected by the rule and it may preclude a party from bringing an action as against a solicitor. There was a case back in 1998 that’s an unreported decision of Giamanco and Zahora that dealt with that very issue. And there, the Court was faced with a motion to consolidate proceedings. There was a Will challenge, there was an action against a solicitor and there was a motion to consolidate.  The solicitor resisted that, as did the parties to the other lawsuit, on the basis that the deemed undertaking rule was breached.  And the Court there dealt with the issue of the deemed undertaking rule.

Allan Socken:  And what’s also interesting about that case was, it cited a decision known as Orfis Realty and D.J. Jewellery of Canada Ltd., which basically says that if you try to use evidence from one proceeding to another, notwithstanding the deemed undertaking rule, that a contempt order can be issued against the party who tries to do that. And notwithstanding that ruling, Justice Mossep in the Giamanco decision did not proceed to make a contempt order in the Giamanco decision.  But the Justice did make mention of the fact that the solicitor, the defendant, could go ahead and try to stay the proceedings. But what’s interesting about it is Justice Mossep didn’t, on its on volition, try to stay the proceeding.

Paul Trudelle:  That’s right.  I think she left it open to the party to bring the appropriate motion in the second proceeding to have it stayed. And I think that’s maybe something we can touch on before we wrap up, which is the remedies where there is a breach of the deemed undertaking rule. You mentioned that contempt was one of them.  And the other was a motion or a staying of the second proceeding or perhaps even a dismissal of that. You think that might be a fair conclusion?

Allan Socken:  Absolutely.

Paul Trudelle:  Okay.  Now how do we, as parties to a litigation, when we’re going to be getting evidence from solicitors, how do we protect the right to pursue an action, if one is advisable, as against the third parties or those people who are giving evidence?

Allan Socken:  Well generally, when we do a Will challenge, in that kind of situation, when we proceed with the order giving direction, which basically sets out the procedure for the litigation, we’ll specifically ask the Court within that order to ensure that this rule, the deemed undertaking rule, doesn’t apply for that litigation.

Paul Trudelle:  And the Court can make an order that the deemed undertaking rule doesn’t apply. Often, in estate matters, we seek that in the order giving directions, usually on the basis that there’s no other way to get that information. The solicitor is…the information that he has can only be produced on a Court order in this proceeding because the person who gave the instructions is deceased. In effect, the parties are stepping into the shoes of that deceased person to get the information.  And on that reasoning, we would argue that the deemed undertaking rule shouldn’t apply and that evidence shouldn’t be protected from an action, if it turns out that such an action is warranted.

Okay, well I think that’s a good, initial discussion with respect to the deemed undertaking rule, and when it can be invoked and the considerations to be taken into account. Thank you very much, Allan.

Allan Socken:  Thanks Paul.

Paul Trudelle:  And just before we go, we welcome your comments and we ask for your comments. You can send us an e-mail at hull.lawyers@gmail.com and send in any comments, your questions or suggestions that you might have.

Allan Socken:  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.

Paul Trudelle:  And we also have a comment line.  You can call us at 206-350-6636, and give us your comments and you might even end up on the air, on our podcast, if you leave a comment.

Well, thanks a lot Allan, that was very good.  It was a pleasure blogging with you this week.

Allan Socken:  Likewise, Paul.

Paul Trudelle:  Podcasting with you, and I look forward to doing this again, thank you.

Allan Socken:  Thanks.

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.

To listen to other podcasts, or to leave a question or comment, please visit our website at www.hullandhull.com.

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