Preparing for Trials in the Context of Contested Passing of Accounts - Hull on Estates Podcast #88

Posted on December 4^th, 2007 by Hull & Hull LLP

Paul Trudelle:  Hi and welcome to Hull on Estates.  You’re listening to Episode #88 on Tuesday, December 4^th.

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 Craig, how are you today?

Craig Vander Zee:  Good Paul, yourself?

Paul Trudelle:  Very good, thanks.

Craig Vander Zee:  Have you done your holiday shopping yet?

Paul Trudelle:  No, not at all.  That’s, that’s what Christmas Eve is for.  We were talking before…

Craig Vander Zee:  I hope you’re…wife has different thoughts on that.

Paul Trudelle:  Yeah, well I hope so too, she won’t be listening to this one.  We were talking before we started recording today about passing of accounts and how it’s very common these days to see accounts being prepared and passed.  And that often is where things end.  With a proper passing, questions can be raised, objections raised and they can be dealt with there.  But sometimes, as we’ve talked about, a trial is necessary.  So we thought today we’d talk a bit about preparing for trials in the context of contested passings of accounts.

Craig Vander Zee:  Perhaps, you know, said a different way too, with the onset of contested passings, its very regular or common that they can be resolved to everyone’s satisfaction at a pre-trial stage.  But there are certain passings, perhaps because of the size of the estate, perhaps because of the involvement of the specific parties, perhaps because of the complexity of the estate and the issues that arise from that, a contested passing can only be dealt with by way of a trial.  And there’s a number of issues that we could all consider in preparing for trial.  And again, trial preparation doesn’t begin after the pre-trial conference and before trial.  It really begins when you meet with your client and you’re identifying the issues, you’re deciding how you’re going to prove your case and how you’re going to marshall the evidence.  Because how you go about that process will ultimately leave you in a position well prepared or not so well prepared, or perhaps not as well prepared as you wanted to be, prior to trial.  So, it’s important to be mindful of a trial and the preparation that you will need for that, as you’re dealing with each of the pre-trial stages.

Paul Trudelle:  I think that’s a very fair comment.  I think everything that we do along the road in handling a file can be considered trial preparation, from the initial file meeting to how you set up the discussions with your client, the obtaining of evidence, identifying issues, and I think that just the sheer scope of the issues that the Court can deal with on a passing, often give rise to contentious matters that can’t be dealt with simply by way of an accounting, and a trial is necessary.  But I think everything we should be doing should be with an eye towards trial, and at the same time, an eye towards avoiding that trial through obtaining proper answers through resolving the issues along the way.  But I think the backdrop has to be the trial preparation.

Craig Vander Zee:  Certainly, when you’re formulating your strategy, even on a preliminary basis, it’s got to be in one’s mindset.  And albeit that a trial strategy can’t really be finalized until you’ve had the ability to marshall all the evidence and have a thorough review and careful review of the evidence to know where your client stands particularly on all the issues, certainly the mind’s eye needs to be on the trial preparation when the strategy is formulated.

Paul Trudelle:  That’s right.  And I think the solicitor has to always be aware of what is he going or she going to be able to prove in Court and how are they going to prove that in Court, if it gets there.

Craig Vander Zee:  With all of that said, Paul, I think the first place to start with is the parties themselves.  Are all the parties who ought to be involved in the passing actually involved, and if so, whether any of the parties that are involved need representation that don’t already have it.  It could very well be the case that at the beginning of a contested passing, for example, there was no one with a disability.  But if the passing, because of discovery stages, takes quite some time, perhaps there’s a party now, a beneficiary of the estate, who’s become disabled or is no longer capable and in some way needs representation that didn’t have it prior to that. 

So there are a number of questions that you can ask in dealing with this issue, some of which are again, are any of the parties self-represented, and if so, have they been notified of all of the critical steps along the way.  Has anyone filed a Notice of No Objection, has anyone filed a Statement of Submission of Rights, and if so pursuant to the Rules of Civil Procedure, they’re entitled to notification of the time and date of the trial, even if they’ve submitted their rights.   Is a minor involved, and if so, is the Children’s Lawyer involved, and again, is there an adult who is disabled or perhaps is there a representation Order necessary pursuant to Rule 10 of the Rules of Civil Procedure.  So there are a bunch of questions you can ask dealing with the issue in respect of parties.

Paul Trudelle:  I think that net has to be cast as wide as possible from the outset.  There’s nothing more embarrassing than getting to Court only to have a judge say, what about beneficiary A or potential beneficiary B?  Where are they?  Why haven’t they been notified of this?  Is this person, or are there minor interests that should be identified and the Children’s Lawyer put on notice?  That sort of thing.  It’s best to get that dealt with from the earliest stage possible, and also be aware, as you said, that the status of parties may change as time goes on and it may be that the representation will have to change as a result of that.

Craig Vander Zee:  It could very well be that the Children’s Lawyer is representing a minor at the beginning of a contested passing and the minor becomes 18 years of age during it, and as such, the Children’s Lawyer may not have jurisdiction anymore to represent that minor and that minor would then become an unrepresented party unless they get their own representation.  So there are certainly are ways where representation issues can come into play.

Paul Trudelle:  Similarly, that child may become an adult, but adults may become incapable as time goes on, especially if it’s a long, drawn out piece of litigation, in which case, other representation may need to be brought in.  So assuming we have all of the proper parties at the table and everyone has filed their Notice of Objection or submitted their rights to Court or indicated they are not taking any part in the proceedings, once we’ve gone through the pre-trial steps and we want it to get to trial, we need to set it down for trial. 

The process for setting it down for trial is set out in the Rules.  It may also be covered by the Order giving directions that the parties obtain before the litigation is started.  Rule 48 deals with setting matters down for trial and what needs to be in the trial record and the parties setting it down for trial should have mind of that, so that the matter can be put onto a trial list and eventually, depending on your jurisdiction, called to trial.

Craig Vander Zee:  There are a couple of manners in which a trial may ultimately be scheduled and attended upon.  One of them is, of course as you’ve referred to, by way of Rule 48 of the Rules of Civil Procedure which is a formal service and filing of a trial record.  It could be, though, in a contested passing, if there’s been Orders for directions, or at the pre-trial conference, where there is an Order that the length of the trial is fixed and that the actual date itself is to be set by the Registrar on dates convenient to the parties, and as such, it may not be necessary with contested passings, that a formal Rule 48 process be in place.  But that could very well depend on the location Courthouse and practice of the judges in that area as to which method is preferred.

Paul Trudelle:  Right.  Every jurisdiction seems to have their own particular practise.  The order that I normally see, though, is a provision in the Order giving directions setting out how the matter is to be set down for trial, what is to be in the trial record.  The next thing we should talk about then in preparing for trial is getting your documents in order.  I was going to say that in passing of accounts matters, documents are of particular importance.  The accounting is an accounting issue.   It’s usually based on the vouchers that the parties will have to produce and therefore the documentary production is probably paramount when preparing for trial.

Craig Vander Zee:  It’s critical, Paul, I agree with you, that the documents need to be organized and need to be organized prior to trial.  The last thing that one wants to see is, you know, the weekend or a week or two weeks even before trial, and organizing the documents and there’s documents missing.  And there may be insufficient time to get copies, to go over copies with witnesses.  So it’s critical in doing trial preparation that the documents themselves be collected and organized far in advance of the trial. 

And with a contested passing, some of the documents that you’re going to want to include or have at your fingertips are the Notice of Application, even if the matter has gone by way of pleadings in a certain…like a Statement of Claim or Statement of Defence.  You still want the original Notice of Application.  The estate accounts obviously, Certificate of Appointment, any prior judgment related to the passing even if it’s two or three passings before.  It’s always important to have the record as to when the estate administration started and how many passings there have been.  It could very well be that one of the issues really arose during a prior passing period, and the accounts during that period had been passed. 

And so you’d want to be able to prove that to the judge and deal with that.  All Orders regarding the passing of accounts before the Court, all Notices of Objections, all pleadings again, Statements of Submission of Rights.  If the parties have consented or are providing any releases, it could be that some of the parties have consented to the accounts or have released the estate trustee, and any Affidavits of Service regarding any of the documents we have discussed here.  And again, of course, all the vouchers and the documents and the productions that the parties have produced, and being mindful again that production can happen by way of Affidavit of Documents.  It can also be ordered by the Court and it can also be dealt with by agreement of the parties.  So you really want to ensure that whatever the other side is to produce, it has been produced.  And if you’ve been required to produce something, that you do it, so that no adverse inference can be drawn at Court against you that you haven’t produced a document that you want to rely on but haven’t done so, perhaps merely by inadvertence.

Paul Trudelle:  Yeah.  And the shopping list that you ran through is very important and it’s something that the Court is going to want, the parties are going to want.  That can normally be put into a compendium or a joint document brief.  I don’t think there’s any issue with respect to the relevance or appropriateness of putting those documents that you’ve referred to before the Court.  And there’s other evidence that we’ll talk about it where it may be a little harder to get before the Court.  But I think the pleadings and the other notices and the position of the parties are all matters that should be before the Court, ideally put before the Court in an organized fashion as part of a joint document brief.  And that’s something that you should, as counsel, or you may want to address at the pre-trial, to make sure that someone is taking care of that and you’re not scrambling the weekend before trial to make sure the other side has done it or you’ve…if you’re objecting, or that you’ve done it as estate trustee.

Craig Vander Zee:  Again, you know, part of the manner in which you can succeed at trial is by staying organized and knowing that the judge is following along.  And so again, with the laundry list that I mentioned, leaving aside the documents to be produced and exchanged between the parties, really dealing with the other items which were more or less pleadings, or be classified as pleadings, if they’re set out and perhaps put in a compendium for the judge, then that’s simply going to help the judge along the way and help keep the judge focused on the issues.  One thing, too, with respect to documents, is bearing in mind issues of privilege.  If there are any issues of privilege, perhaps you want to challenge a document that’s listed in Schedule B of the Affidavit of Documents as being privileged, that challenge should take place prior to the commencement of trial.  It could be that counsel haven’t identified the documents in Schedule B and you have asked them to identify that by way of an undertaking and they haven’t done that.  You’d want the answer to that undertaking before trial. 

And then another issue that can come up, although not that commonly, but can come up is under Rule 30.09 of the Rules of Civil Procedure.  And that’s where you’ve taken a position that a document is privilege, but you decide that you want to waive that privilege and use it at trial, for whatever the reason might be.  Rule 30.09 says you have to waive that privilege at least 90 days before trial.  And in doing that, you also offer the other side the opportunity to either review the document or you provide a copy to them, so that there’s no surprise to them as to the documents you’re relying on at trial.

So while that is not a common situation, it’s one to certainly remember before trial.

Paul Trudelle:  Right, and I think the issue of privilege is of particular relevance in a passing of accounts where an estate trustee is relying on solicitor advice or obtaining information with respect to administering the estate and there’s an issue as to whether that document is privileged or whether the beneficiaries are entitled to review that.  I think that’s something that the parties should want to have addressed before it gets to Court and I think the judge would also want that as well.

Craig Vander Zee:  And then perhaps lastly today, Paul, we need to always be mindful of the originals in a file.  And certainly there’s issues as to the admissibility of documents, which we’ll talk about next day.  Because certainly the document itself, the contents of it are hearsay and cannot be submitted for the truth of the contents unless there’s an exception or it’s proved by a witness.  We’ll deal with that on a different day.  And the notices that can be used under the Evidence Act to deal with that and how counsel might agree upon the use of documents so as to avoid the time and cost associated with proving the authenticity and contents of documents.  But from the standpoint of the originals of the documents, it’s always important to know what the originals in fact are.  Have they all been reviewed?  And if you don’t have an original, perhaps through inadvertence or perhaps through longevity of administration of an estate, a document has accidentally been lost…the original, that is…there’s copies of it…it’s important to know how and why the originals are no longer available.  So that can be addressed with through the measures that we’re going to talk about next day and that I just mentioned briefly a minute ago. 

So again, know the originals, know which originals you have and which you don’t.  And it could very well be that there’s handwriting on the back of an original that wasn’t photocopied because only one side of the document was photocopied.  So it is important to have had the opportunity to go through the originals and get full value of the markings on the document.

Paul Trudelle:  I think that’s right.  And we were talking about trial preparation starting when the client first comes into your office.  I think trial preparation may start as soon as the estate trustee takes on the role of estate trustee and may want to ensure that originals are  kept with the…because of the possibility that this may end up in Court and originals will be required if it goes to trial.  That’s quite a bit of information for this podcast.  It may be that…well, we will have to continue this next time.  And that may not be until after, or into the new year.  So I’d like to wish our listeners a happy new year and happy holidays.

Craig Vander Zee:  I also would like to take this opportunity to wish you a happy holiday from a podcasting standpoint because I’ll see you tomorrow but... 

Paul Trudelle:  I’ll see you tomorrow as well.

Craig Vander Zee:  …I won’t see you from a podcasting standpoint until the new year, so I’ll look forward to that and all our podcasts of 2008.

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.

Our theme music is Upper Structure by DJ AKid  and is courtesy of the Podsafe Music Network.

/mem