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.