Estate Planning

Motions in Estates Litigation: Longer Than You Think

By Hull & Hull LLP

Estates litigation is full of wonderful little procedural differences from general civil litigation.  The most basic differences are found in Rules 74 and 75 of the Rules of Civil Procedure.  Take for example motions.  One would think a motion is fairly straightforward, but...

The general provision governing motions is Rule 37, of course, which requires motions made on notice to be served at least 4 days before the hearing (R. 37.07(6)).  But in estates litigation, often a mere 4 days is not sufficient.  The handy all-purpose Rule 74.15 Order for Assistance requires service at least 10 days before the hearing, even though a mere motion.  So does a motion (or an application) for Directions under Rule 75.06. 

Not only that, "any person who appears to have a financial interest in the estate may move" under R. 74.15 for Assistance or under R. 75.06 for Directions, so the usual standing arguments may not apply.  In estates litigation (depending on the jurisdiction), even the family dog has standing (sometimes).  I'll leave the rest for another blog, but as a reminder, R. 75.06(2) requires service on "all persons appearing to have a financial interest in the estate."  But that's a topic for another blog.

Enjoy your day.

Chris Graham

Full post as published by Toronto Estate Law Blog on April 16, 2009 (boomark / email).