Estates and trusts can be complicated. Often, it is necessary to get the Courts involved to resolve complex situation, even though there is no dispute between parties. In estates, this often means proceeding by way of ‘application’ rather than ‘by statement of claim’.
We handle many contentious and non-contentious Court applications for executors including:
Passing accounts
We assist attorneys and executors to prepare their accounts in Court-format, submit them to Court for approval, and where necessary, respond to any objections or challenges by beneficiaries. As an executor, sometimes you must pass accounts even if there is no dispute about them – for instance, if the beneficiary is a minor or under disability, or an adult beneficiary simply refuses to provide a consent to your accounts.
Learn more about passing accounts here.
Trust variations
Trusts often do not contemplate the events that unfold with the passage of time. Trustees die or become incapacitated, beneficiaries die, assets change or are depleted. Often, the only solution is to apply to the Courts for a trust variation.
Applications for directions
Wills can be vague or confusing. Circumstances of a will or an estate may require interpretation – for instance, if an adult child claims that an asset jointly owned with their deceased parent is theirs alone, or if an executor refuses to act. It can be unclear when these problems occur, estate trustees and others turn to the Courts for interpretation and guidance. These applications to the Court, which are known as ‘applications for directions’ can be summary in nature, and can range from simple to complex. All, however, benefit from skilled experienced legal counsel capable of helping you navigate forward as quickly and practically as possible.
Applications: the Process
Starting a proceeding by Application is different from starting by ‘Statement of Claim’. A Statement of Claim is the conventional way that lawsuits are started, and they ultimately lead to a regular trial. They tend to take years from start to finish.
An Application usually leads to hearings in Court based on ‘affidavit evidence’ (sworn written statements) rather than live witnesses unless a judge determines that live witnesses are needed (usually if there are credibility issues). As a rough rule of thumb, most applications are resolved 6-18 months after they are started.
In an Application, each party puts its evidence before the Court in writing. This lends itself to cases where ‘the paper governs’. If ‘who said what’ type issues are important, then a trial may be required – and if the proceeding started by Application, it is possible that some or all of the issues may be converted to a trial process when the Court needs to hear live witnesses.
We prefer proceeding by Application whenever appropriate because it tends be a less expensive and faster way of proceeding than by Statement of Claim.
The Steps in an Application
Issue the Notice of Application
- File the application with the Court, and get the first ‘return date’.
- The first date is usually not chosen with any involvement from the respondent. Accordingly, the Application is almost never heard on the merits on this date – adjournments are very likely
Serve the Application on the Respondent
- Either by personal service on the Respondent, or delivery to their lawyer
Serve on the Respondent (and file with the Court) the supporting affidavit material
- Sometimes done at the same time as the Application, sometimes not. It is certainly helpful to have as much evidence as possible assembled prior to filing the Application.
First Court date
- The date set in the Application or a later date if the first date is adjourned
- Often used to fix a schedule for next steps in the proceeding
- secure orders of production from third parties if necessary (eg. Lawyers, banks)
The Respondent serves their affidavit material on the Applicant
- The affidavits filed by each party should put forward their full version of the facts (they are not an argument).
- The affidavits should include, by way of attachment, the documents relevant to the case – including wills, bank statements, etc. as required.
Cross-examinations of the affiants on their affidavits
- The parties will often choose to cross-examine each other on their affidavits. This is similar to, but much narrower narrow, than ‘examinations for discovery’ (called depositions in the United States) which take place in regular law suits, and are often a cause of considerable expense and delay.
- Usually take place at a law firm or court reporter’s office. Cross-examination is always in the presence of opposing counsel and a Court report.
- Cross-examination is most commonly used to narrow or qualify the statements in the affidavits.
Mediation
- Mediation is often mandatory, and almost always recommended.
- Mediation takes place at a time and place and with a mediator of the parties’ choosing.
- Mediation is often very effective for resolution of estate cases.
- Learn more about mediation here.
Hearing
- If some or all of the issues proceed to Court, the parties are required to file factums. The factum pulls the law, the facts, and the argument together, to put the party’s case before the Court succinctly.
- Hearings in applications are before a single judge, who hears from the lawyers. These are ‘paper-based’ hearings. It is not necessary for the clients to be present, and there will be no witnesses to give evidence. If the judge decides that witnesses are required (for instance, if is not possible to decide an issue of credibility on the paper evidence) the judge may order ‘the trial of an issue’ – that particular issue will proceed to a trial, for determination.
Timelines
- Nothing ever happens as quickly as you think in litigation
- The Courts have a substantial backlog so first available dates are often far into the future
- Adjournments are very common
- It is incumbent on the Applicant to press forward – if you want the matter resolved, you must keep forcing the issue forward
- The total time from filing to resolution is best measured in months – 6-18 being a common time frame.
Applications are, like all litigation, complex, high-stakes, and stressful. They require experienced, wise legal counsel.
We conduct many estate applications, including on ‘contingency’ for clients who do not wish to pay the legal fees as the file progresses and want us to have ‘skin in the game’. Please consult us for a consultation.
