The current system allows anyone who appears to have a financial interest in an estate to challenge a will for minimal costs by giving notice of their objection. All that is required is the filing of a one page document called a “notice of objection”. This is often a boiler plate document alleging that the will-maker did not have capacity, did not know or approve of the contents of a will or was unduly influenced. At this stage, no evidence has to be provided and the application for probate will be temporarily derailed.
It is said that there are two certainties in life: death and taxes. For those involved in litigation, there is a third: legal fees. Who should bear the often-exorbitant cost of these fees at the conclusion of litigation? Although legal costs have traditionally been paid out of the Estate, modern Ontario courts follow the “loser pays” rule in estates matters. A recent ruling from the Court of Appeal for Ontario[1. Welton Estate v. Haugrud, 2017 ONCA 831] demonstrates that the court has flexibility even when operating within this rule. Specifically, the court can apportion costs between the litigants in a way that respects the importance of giving effect to valid wills while also discouraging parties from taking unreasonable positions.
Is it appropriate for a court order to permit an Estate Trustee During Litigation (“ETDL”) to distribute the Estate? Possibly. The statutory authority to appoint the ETDL is found in Section 28 of the Estates Act, which provides that an ETDL has all the rights and powers of a general administrator, other than the right of distributing the residue of the property. Generally, an ETDL is appointed when the court feels a neutral third party should be administering an estate to preserve estate assets.
Clients are sometimes understandably frustrated when the cost of defending a bogus claim is greater than settling. I want to share a story about one case where an aggressively creative motion addressed this concern. In this unreported case, the Applicant filed a Notice of Objection and commenced proceedings seeking support under Part V of the Succession Law Reform Act, R.S.O. 1990, c. S.26. The Deceased was not biologically related to the Applicant and was not receiving any financial or emotional support prior to the testator’s demise.
The recent Ontario case of Timbers Estate v. Bank of Nova Scotia illustrates the vulnerability of those who are victims of a catastrophic injury. Jeffrey Timbers was in a car accident in 1993 and remained in a coma until his death in 2005. Who negotiates for someone like him? Who hires the personal injury lawyer or gives the lawyer instructions? When there is a settlement, who manages the money received?
The Zimmerman v. McMichael Estate 2010 CarswellOnt 3481, 2010 ONSC 2947, 57 E.T.R. (3d) 101, 103 O.R. (3d) 25 is instructive for those reviewing the Ontario law regarding the duty of an attorney for property to account, the extent of that fiduciary duty and the consequences for failing to account.