The general provision governing motions is Rule 37, of course, which requires motions made on notice to be served at least 4 days before the hearing (R. 37.07(6)).  But in estates litigation, often a mere 4 days is not sufficient.  The handy all-purpose Rule 74.15 Order for Assistance requires service at least 10 days before the hearing, even though a mere motion.  So does a motion (or an application) for Directions under Rule 75.06. 

Not only that, "any person who appears to have a financial interest in the estate may move" under R. 74.15 for Assistance or under R. 75.06 for Directions, so the usual standing arguments may not apply.  In estates litigation (depending on the jurisdiction), even the family dog has standing (sometimes).  I'll leave the rest for another blog, but as a reminder, R. 75.06(2) requires service on "all persons appearing to have a financial interest in the estate."  But that's a topic for another blog.

Enjoy your day.

Chris Graham

In a typical Will challenge proceeding, the process can involve an application/motion for directions, documentary discovery from the parties and non parties, examination of the parties and non parties, interlocutory motions, mediation (informal or formal), expert reports, a pre-trial conference and a trial.

In the typical Will challenge, an order for directions can be the best tool a party has, at first instance, to manage a Will challenge. An order for directions allows a party to craft the manner in which a Will challenge may proceed and to seek the assistance of the court with obtaining interim and/or ancillary procedural relief to the Will challenge. The provisions included in an order for directions, may depend on, among other things, the issues and parties involved, the evidence to be marshalled, whether mediation is a requirement and, if not, how the evidence known, and/or to be obtained, might be utilized in the pursuit of settlement and the claim, and other relief in respect of the estate that may be necessary.

In the case, however, where the Will challenge is frivolous and the propounder of the Will wishes to short circuit the typical Will challenge process, consideration can be given to, among other things, a motion for summary judgment and/or security for costs. Such a motion can be a powerful tool in litigation in the appropriate circumstances.

An offer to settle can also be used to try and force an opposing party to resolve a frivolous Will challenge or face potentially substantial costs consequences if the proceeding is continued.

Enjoy the Holidays! Craig

Read the transcribed version of  "Tips for Directing and Controlling Estate Litigation

During Hull on Estates Episode #48, Craig Vander Zee and Bianca La Neve continue their discussion on tips for controlling and managing estate litigation, focusing on orders giving directions, oral discovery and mediation.

READ THE TRANSCRIBED PODCAST

During Hull on Estates Podcast #38, we discussed provisions that may be included in Orders Giving Directions.