Notices of Objection are an important tool for resolving estate disputes in Ontario. They create an obstacle to probate that must be ‘dealt with’ before the probate application can proceed. Notices of Objection are therefore a very important tool for protecting the rights of people who object to the Will or to a potential or proposed estate trustee. If a Notice of Objection is filed properly and on time, it will ensure that the complaints and objections can be fully aired before probate is granted, perhaps with the wrong Will or to the wrong estate trustee.
Key issues:
- The objection must be filed in time, ideally before the person applying for a Certificate of Appointment of Estate Trustee files their application for probate. It is almost never too early to file a Notice of Objection.
- The Rules of Civil Procedure set out a strict process for dealing with Objections. If the objector does not comply with the requirements and the timelines, the objection will be struck and the probate application will proceed.
Preparing and filing a Notice of Objection is not simple but it is relatively straightforward. It is important to provide a suitable succinct description of the dispute.
It is crucial that the filing be done properly in the right Court as quickly as possible.
There is nothing wrong with preparing and filing a Notice of Objection yourself or with generalist legal counsel in a rush to preserve your rights. However, it should then be reviewed (and if necessary replaced) by expert counsel.
Most importantly, once the Court links the Notice of Objection to a probate application, the objector must be ready and willing to press forward. The timeliness are very tight. The objector should have engaged experienced counsel and prepared their position long before the notice is received from the Court.
A Notice of Objection just sets up a temporary roadblock. When the notice is received, the objector MUST file a notice of appearance within the tight deadline. If the Objector does not take the necessary steps to advance their claim in a timely manner,
Note: A Notice of Objection does not force anyone to file a probate application. Notices of Objection are not useful when the problem is a failure of the executor/estate trustee to probate or administer the estate.
Practice point: Just filing a Notice of Objection and then sitting back is often not the best plan. Rather than simply waiting for the probate applicant to ‘encounter’ the Notice of Objection, it may be better to seize the initiative and file a full Application for Directions immediately. This will ensure that the objector’s complaint is properly before the Court and moving forward in a timely manner. On the other hand, just filing a Notice of Objection, and then allowing the proponent of the Will to lead the Application for Directions process can have significant tactical and strategic weaknesses. In particular, while ‘just filing a Notice of Objection’ may seem the cheapest option, failure to initiate the Application for Directions often means abandoning the ability to shape the narrative and the definition of the substantive issues with the initial pleadings, and it may mean ceding control over the timing and pace of the litigation.
In estate disputes, expertise and experience matters. We can help.