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Where do I apply for Probate? Where do I challenge a Will?

Rule 13.1 of the Rules of Civil Procedure (the “Rules”) specifies where proceedings (which includes applications and actions) are to be commenced.

Rule 13.1 establishes two categories of proceedings. The first category involves proceedings which are required to be commenced, brought, tried, or heard in a particular county and specifies that they “shall be commenced in that county”.1 The second category deals with all other proceedings, which “may be commenced at any court office in any county named in the originating process”.2

The only estates proceeding that is required to be brought in a particular county are applications for a certificate of appointment of estate trustee with/without a will brought pursuant to Rules 74.04 and 74.05, which must be filed in “the county or district in which the testator or intestate had at the time of death a fixed place of abode”.3 Accordingly, Rule 13.1.01(1) only permits the Toronto Region Estates Office to accept filings where Toronto was the fixed place of abode of the testator or intestate at the time of his or death.4

There is no similar requirement with respect to the other types of estate-related proceedings that the Toronto Region Estate Lists hears.5 Accordingly, Rule 13.1.01(2) applies and such proceedings can be commenced in Toronto “regardless of where the deceased person died, the place of residence of the respondents or the location of the respondents’ counsel”.6

That said, the general rules regarding the appropriateness of a venue still apply and while the Estates Office Staff is required to accept an application unless the Rules or a statute provide otherwise, the respondent can later move under Rule 13.1.02(2) to transfer the proceeding where it “is desirable in the interests of justice” to do so.

An interesting case on this point was Salvador v. Marshall,7 Justice Brown, who is now a member of the Court of Appeal, made the following comments of interest:

  • Rule 13.1.01(2) applies to all other applications which may be heard on the Toronto Region Estates List – that is to say, all such other applications can be commenced in Toronto regardless of where the deceased person died, the place of residence of the respondents, or the location of the respondents’ counsel.
  • Rule 13.1.02(2) operates as a safeguard against one party commencing an application at an inappropriate location, for under that rule a party may move to transfer the proceeding where it “is desirable in the interests of justice” to do so.

Another interesting case on point is Hallman Estate.8 In this case Justice Brown addressed the motivation of counsel to litigate estate issues outside the jurisdiction in which the deceased resided. In part, he said,

  • Certainly courts should review carefully cases where one party attempts to use the retainer of counsel outside her home jurisdiction as a tactical weapon in a venue dispute. That said, the issue of the location of counsel is both relevant and nuanced.
  • Litigation no longer takes place within a paradigm in which all litigation lawyers can be treated as interchangeable generalists. The market has changed. Clients have demanded the change. The litigation bar is now marked by areas of discrete expertise, as readily seen by the emergence of directories for clients such as the Canadian Legal Lexpert Directory and Best Lawyers in Canada. Centres of subject-area expertise have emerged – examples that come quickly to mind are the availability of litigation expertise in class actions in Windsor and London, intellectual property in Ottawa and Kitchener-Waterloo, and personal injury in Barrie and Ottawa. Toronto enjoys a significant concentration of litigation expertise for estates and trusts disputes.
  • In view of this changed market for legal services it should come as no surprise that some litigants look outside of their home jurisdiction to select the lawyers whom they think possess the required expertise to best represent them. Choosing a lawyer who works in another city might well represent a very rational and considered business decision by a litigant, and not an attempt to play tactical games with the other side. …… A court conducting a change of venue analysis must be alive to the possibility of the reasonableness of such a choice.

 

Footnotes
  1.   Rule 13.1.01(1) provides “If a statute or rule requires a proceeding to be commenced, brought, tried or heard in a particular county, the proceeding shall be commenced at a court office in that county and the county shall be named in the originating process”
     
  2.   Rule 13.1.01(2) provides that, “If subrule (1) does not apply, the proceeding may be commenced at any court office in any county named in the originating process”
     
  3.   Section 7 of the Estates Act.
     
  4.   Salvador v. Marshall,2009 CarswellOnt 2809, 177 A.C.W.S. (3d) 1136, 79 C.P.C. (6th) 158 at para. 6 citing Re McMichael Estate, 2008 CanLII 28443
     
  5.   See para. 3 of the Practice Direction for a list of proceedings that the Toronto Region Estate List hears.
     
  6.   Salvador v. Marshall,  2009 CarswellOnt 2809, 177 A.C.W.S. (3d) 1136, 79 C.P.C. (6th) 158   at para. 7
     
  7.   Salvador v. Marshall,  2009 CarswellOnt 2809, 177 A.C.W.S. (3d) 1136, 79 C.P.C. (6th) 158.  This case has been referred to in Rahemtulla v. Bell, 2012 CarswellOnt 4275, 2012 ONSC 2181, (2012) O.J. No. 1601, 213 A.C.W.S. (3d) 74.  In that case Justice Brown noted in paragraph 15 & 16

    15. Unless a statute or rule requires a proceeding to be commenced in a particular county, the applicant may commence it at any court office in any county named in the originating process. The Practice Direction Concerning the Commercial List, Toronto modifies this principle, to an extent, by providing that:

    8. Only Toronto Region matters can be listed on the Commercial List (unless, for special reasons, authorization is given by the supervising judge). Aside from urgent insolvency matters, there should be a material connection to the Toronto Region over and above the location of counsel.

    16 The parties appeared before me at a 9:30 appointment on April 2, 2012. Since the proposed Notice of Application, on its face, stated that Mr. Rahemtulla is a businessperson living in Toronto, Ontario, I authorized the issuance of the Notice of Application on the Commercial List.

    The practice directions of the estates lists (http://www.ontariocourts.ca/scj/practice/practice-directions/toronto/estates/#Part_III_Matters_heard_on_the_Estates_List), paragraphs 5-7 say as follows:

    5. A matter that should have been commenced on the Estates List may be transferred to it by a judge who is hearing the matter, but who is not sitting on the Estates List.

    6.  Matters may be transferred to the Estates List on consent, provided the matters fall within the categories outlined in sub-paragraphs 3(a) – (o), or on a motion to a judge sitting to hear matters on the Estates List.

    7.  The place of commencement of a proceeding is governed by Rule 13.1.01. Requests to transfer matters commenced outside the Toronto Region to the Estates List are governed by Part III of the Consolidated Provincial Practice Direction.
     

  8.   2009 CanLII 51192 (ON SC),52 ETR (3d) 29 — 80 CPC (6th) 139 — (2009) OJ No 4001 (QL)
     

David Wagner

The author of this blog is David Wagner. David is an associate at Wagner Sidlofsky LLP.

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This blog is not intended to serve as a comprehensive treatment of the topic. It is not meant to be legal advice. Every case turns on its specific facts and it would be a mistake for the reader of this blog to conclude how it might impact on the reader’s case. Nothing replaces retaining a qualified, competent lawyer, well versed in this niche area of practice and getting some good legal advice.
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