All of us at AllAboutEstates hope you had a happy new year and will have an equally happy 2019. As we start the new year, here are some changes estate litigators should be aware about as well as some upcoming developments.
The Rules of Civil Procedure have been amended (the changes are not yet on CanLII) that if no confirmation form is provided, the motion will be deemed to have been abandoned. The responding parties can appear on the scheduled date to seek costs if they provide a confirmation to that effect no later than 10 a.m. two days before the hearing date. The confirmation of motion form (form 37B under the Rules of Civil Procedure) has been changed to reflect the ability of the responding party to seek this relief. The forms can be found at ontariocourtforms.on.ca/en/rules-of-civil-procedure-forms/
The forms for applications for a certificate of appointment of an estate trustee (i.e. probate applications) have also changed. The new forms are similar, but include additional language clarifying what sort of assets pass outside of an estate and, thus, do not need to be included in the probate application. This new language will be helpful for laymen (and laywomen) who are doing their own probate application and may not have otherwise realized that they do not need to pay probate fees on bank accounts with a beneficiary designation for an individual. The forms for applications for a certificate of appointment of an estate trustee without a will have additionally been changed to clarify questions about the deceased’s marital status and reduce the number of questions.
Currently, only word versions of the new forms are accessible online. According to a spokesperson from the Ministry of the Attorney General, the pre-formatted fillable versions of the forms will be posted online this week. The spokesperson also confirmed that court staff will accept the earlier versions of the forms until March 1, 2019. This post has been revised after it initially went up to incorporate the spokesperson’s comments to me.
As I blogged about a year ago, most claims arising from events that occurred before 2004 are barred as at January 1, 2019 (even if they were only recently discovered) due to the ultimate limitation period. There are exceptions, including proceedings based on sexual assaults. Do not necessarily despair if a claim was not issued in time. Under the Legislation Act, time limits that would otherwise expire on a holiday are extended to include the next day which is not a holiday. As yesterday was a holiday, there is an argument that the ultimate limitation period actually expires today. As I noted a year ago, it is always best to not have to test an argument – but it is better than nothing.
I anticipate that a new judge will be coming to the estates list in early 2019, I hope they will enjoy their tenure in this area!
Finally, I am looking forward to two appellate decisions which will be coming in 2019. The Milne decision (where a primary will was found to be invalid for not satisfying the three certainties), which Justin de Vries and I blogged about, has been argued at the Court of Appeal; the decision was reserved. Will the Court of Appeal uphold the decision in Milne or follow the diametrically opposed conclusion in the Panda case. I also am interested in seeing the Supreme Court of Canada’s decision in S.A. v. Metro Vancouver Housing Corporation (where a landlord wanted information on the assets in a discretionary trust to assess whether a subsidy for low-income individuals could be provided). I predicted that the Supreme Court will not use this case as an opportunity to meddle with Henson-style trusts, but we will all see what the Supreme Court does.
Happy litigating in 2019!