Nelligan O'Brien Payne gratefully acknowledges the contribution of Jill Lewis, Student-at-Law, for their contribuition to this blog post.
If you are a beneficiary of an estate, you are owed a fiduciary duty by the Estate Trustee to be kept informed of what is happening in the estate and to know what decisions the Estate Trustee is making with regard to the assets of the estate. If you are not getting any answers from your Estate Trustee, then you can ask the court to assist you in getting a response to your questions.
To get assistance from the court as a beneficiary, you are allowed to make an Application for Direction. An Application for Direction is a court procedure, which can be time-consuming and expensive if you are unaware of the process.
The following are the major steps in applying to the court for direction:
1. Bring Application or Motion for Direction to the Court
If you require an opinion or advice from the Court regarding an Estate Trustee’s actions, it may be brought under Rule 14.05(3)(a) or Rule 75.06 of Ontario’s Rules of Civil Procedure. Although similar in principle, each rule differs in regards to the remedy being sought.
Rule 14.05(3)(a) allows an individual to commence an application where the relief claimed is: “the opinion, advice or direction of the court on a question affecting the rights of a person in respect of the administration of the estate of a deceased person or the execution of a trust”. This application provides a “substantive remedy”, which addresses the rights of the person bringing the claim.
Rule 75.06(1) provides that any person who appears to have a financial interest in an estate may apply for directions as to the procedure for bringing any matter before the Court. This Rule is procedural in nature and offers the claimant a procedural order regarding “any matter before the Court”. This remedy could offer an order that frames the issues for trial or permits disclosure of relevant documents.
2. Issue the Notice of Application with the registrar
Your application must then be filed with the registrar office. It is to be dated, signed and certified with the seal of the court, and then assigned a court file number. Once the appropriate forms are filed and the fees are paid, you must now serve the Notice of Application.
3. Serve the Notice of Application and supporting materials on all relevant parties
Your Application must be served on all people who have an interest in the outcome of the question before the court. A person with a relevant interest includes the next-of-kin as well as anyone with potential intestacy or partial intestacy. The minimum notice period is 10 days, unless it is being served outside of Ontario, which requires service of at least 20 days before the hearing date.
4. Preparing for Court
In preparing to go before the court, the types of questions you pose are very important. The court will only answer certain types of questions, and generally will not answer academic or hypothetical questions. The court will also be reluctant to answer questions that depend on the future course of events. That is, it will only answer questions that apply to the facts of the particular case as it stands. In order to avoid penalties for abuse of process, the proposed questions must be carefully constructed.
Applying for directions from the court can be a useful way to address issues in the estate. However, there are many procedural rules, deadlines and costs involved. If you would like to seek guidance from the court – contact us and we will be able to assist you.
