Estate Planning

Short Circuiting the Frivolous Will Challenge

By Hull & Hull LLP

Facing a frivolous Will challenge can be very frustrating, time consuming and costly.

In a typical Will challenge proceeding, the process can involve an application/motion for directions, documentary discovery from the parties and non parties, examination of the parties and non parties, interlocutory motions, mediation (informal or formal), expert reports, a pre-trial conference and a trial.

In the typical Will challenge, an order for directions can be the best tool a party has, at first instance, to manage a Will challenge. An order for directions allows a party to craft the manner in which a Will challenge may proceed and to seek the assistance of the court with obtaining interim and/or ancillary procedural relief to the Will challenge. The provisions included in an order for directions, may depend on, among other things, the issues and parties involved, the evidence to be marshalled, whether mediation is a requirement and, if not, how the evidence known, and/or to be obtained, might be utilized in the pursuit of settlement and the claim, and other relief in respect of the estate that may be necessary.

In the case, however, where the Will challenge is frivolous and the propounder of the Will wishes to short circuit the typical Will challenge process, consideration can be given to, among other things, a motion for summary judgment and/or security for costs. Such a motion can be a powerful tool in litigation in the appropriate circumstances. 

An offer to settle can also be used to try and force an opposing party to resolve a frivolous Will challenge or face potentially substantial costs consequences if the proceeding is continued. 

Enjoy the Holidays! Craig

Full post as published by Toronto Estate Law Blog on December 29, 2008 (boomark / email).