Toronto Estate Law Blog : Toronto Estate Lawyer : Hull & Hull Law Firm : Trust Mediation and Succession Planning : Serving Ontario, Ottawa, Mississauga, Hamilton

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Today’s blog is the last in my series this week touching upon certain aspects of preparation for trial/hearing in a contested passing of accounts. The items discussed this week were certainly not meant to be, nor were they, exhaustive. Preparation necessary for a hearing/trial with narrow issues, few documents, few evidentiary concerns and an uncomplicated Estate will obviously be different than a case with numerous issues, voluminous documents, evidentiary issues and a complicated administration. The critical aspect of trial preparation is that it begins at the beginning of a case; not literally, but certainly in the sense of being mindful at pre-trial stages of the evidentiary considerations and how the evidence is to be marshalled and presented.

Aside from ensuring that you have appropriate resource materials at the trial (such as texts dealing with the rules of evidence, the Rules of Civil Procedure, Probate Practice etc.), it is important to have prepared your opening and closing statements (to the extent possible), have prepared the necessary law regarding the substantive issues in dispute (casebook, factum), have addressed costs submissions (organizing offers to settle, preparing a Bill of Costs etc.), and have a trial binder with you at trial for your own use. 

A trial binder may contain the pertinent materials that you would like to have at your fingertips during the trial (ie. pleadings, orders, witness lists, witness summaries, answers to undertakings, listing of the types of evidence, objections, offers to settle etc.). The trial binder will allow you to have quick access to information that you might only have a few minutes or less to locate and quickly review. 

While most contested passings settle at a pre-trial stage, if a trial is necessary, success may hinge on the preparedness of the parties.

Thanks for reading.

Craig R. Vander Zee - Click here fore more information on Craig Vander Zee.

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My blogs over the next three days will touch upon certain aspects of preparation for the hearing of a contested passing of accounts. Today’s blog will relate to the parties, the scheduling of the hearing, and the preparation of documents/productions for trial. 

The issue of whether all of the parties who ought to be involved in the passing are involved, and, if so, whether any of the parties who do not have representation need representation, must be considered. In considering who the appropriate parties are, or should be, the following questions might be asked: Are there self-represented parties?  Have they been notified of all matters related to the proceeding?  Has any party filed a Notice of No Objection to the accounts?  Has anyone filed a Statement of Submission of Rights (if so, have they been served by the applicant/plaintiff with written notice of the time and place of the hearing)?  Is a minor involved (Rule 7.03(2), The Office of the Children’s Lawyer)?  Is there an adult party who is disabled (Rule 7, The Office of the Public Guardian and Trustee)?  Is a representation Order necessary (Rule 10)?

Regarding the scheduling of the hearing, an order of the Court for directions, or otherwise, at any pre-trial stage, or at the pre-trial conference might address same. It may be that the date of the trial, fixed in its length, is to be fixed by the Registrar on a date mutually convenient to the parties.  If, on the other hand, the proceeding is to be set down for trial further to Rule 48 of the Rules of Civil Procedure, that Ruleallows for the proceeding to be set down for trial after the close of pleadings and when a party is ready for trial. In any case, inquiries might be made with the Court office where the trial is to take place to determine what, if any, forms need to be filed with the Court to confirm that the trial is to proceed.

Regarding the preparation of documents/productions for trial, it is critical that the documents in respect of the proceeding be organized prior to trial. If the documents necessary for the trial are not in counsel’s possession when preparing for trial, for whatever reason, they should be obtained prior to trial.  Such documents include, but are not limited to, all pleadings, the estate accounts, certificate of appointment, prior Judgments for passing of accounts, all Orders regarding the passing of accounts, all Notices of Objections (and withdrawals), Statements of Submission of Rights, Consents/Releases of any party, Affidavits of Service, and the documents exchanged between the parties as a result of the Rules of Civil Procedure, any agreement of the parties, and/or Court Order. 

Issues of privilege regarding the documents should also be dealt with prior to trial, if possible.

Thanks for reading.

Craig R. Vander Zee - Click here for more information on Craig Vander Zee.

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The BBC has reported on the successful challenge of a mother's Will by her daughter, Christine Gill, which had left more than £2m to the Royal SPCA.  What was remarkable was the fact that the daughter argued that her father unduly influenced her mother, who suffered from an anxiety disorder, into making a Will she did not want to make.  Certainly this is a rare case.

The BBC noted that this was "just the latest in a long line of high profile, and often bitter, disputes surrounding the estates of deceased family members."

The article went on to note that "it is difficult to pinpoint the exact reasons for such an increase, but the increased wealth generated by many ordinary people over the past two decades has been an obvious factor.  Other influences have been the sharp increases in house prices in the past decade or so, the current recession, and increasingly complex family structures, often with children from two or more marriages." 

In commenting on the Gill case, it was noted that the RSPCA, being a registered charity with a statutory duty to safeguard its assets, will likely feel compelled to appeal.

Have a great weekend!

David M. Smith

David M. Smith - Click here for more information on David Smith.

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Law firms, such as ours, tend to emphasize the benefits to clients of their respective area of specialization. The common pitch to prospective clients is that there is less of a learning curve on each file and, as a general proposition, most problems have usually (with some variation) been seen before.

However, the flip side of specialization is that it may not always best serve the client who presents a hybrid problem spanning two or more areas of law .  In such circumstances, counsel need to candidly assess to what extent their area of specialization may limit their ability to serve their client.  On the other hand, because certain areas of law tend to overlap with considerable frequency, the client who seeks specialized advice is well-served when such counsel recognize this fact and adapt accordingly. 

Certainly, the practice of estate litigation can often overlap with family law litigation.  Take , for example, a beneficiary designation dispute.  While at first glance an estates issue, the existence of a separation agreement and its impact on the dispute inevitably gives rise to legal issues where family law counsel will have considered the issue from their own perspective.  So, too is the decision facing a surviving spouse as to whether to elect under the Family Law Act on the death of his or her spouse. Again, responsible counsel have an obligation to best serve the client.

Continuing Legal Education plays a role as well.  For instance, the Ontario Bar Association has in the past run a program entitled "Kissing Cousins."  A joint venture of the Family Law and Estates and Trusts Sections of the OBA, the mandate of this program has been to highlight practice issues in which estates and family law issues overlap.

David M. Smith

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Anne Werker recently brought an interesting case to my attention. In Rooney Estate v. Stewart Estate[1], the solicitor who performed the executor’s duties attempted to rely on a release signed by a beneficiary in his response to an application that he pass accounts in his capacity as de facto trustee.

Pierce J. held that in order for a release to be enforced, the beneficiary who signs the release:

1.   must be “fully informed”;
2.   must have received competent legal advice in a review of the accounts;
3.   should understand how compensation has been charged; and
4.   should know what legal services have been provided and what the fees were.

Pierce J. also held that a distribution cannot be withheld pending the execution of a release. It is simply fiction for an executor to believe that he/she can refuse to distribute the estate until a signed release is in hand. A holdback must be reasonable and demonstrably justifiable in the circumstances (i.e. tax liability or the costs of a passing). 

However, in the end, some common sense must prevail. In a simple administration, it is unlikely that formal accounts will be prepared for passing either because no compensation is claimed or the costs of doing so are prohibitive. However, the executor will likely ask for a release on the distribution of the estate. In that case, transparency may be the answer. By communicating regularly with the beneficiaries, sending them pertinent information and updates, and/or preparing an informal accounting (including how compensation has been taken), a court may just be convinced that a signed release is good enough.

“TGIT”

Justin