Notice of objection: One piece of paper but a wallop of a punch

By Charles Wagner

Law360 Canada (April 20, 2023, 10:41 AM EDT) --
Charles Wagner
Charles Wagner
At any time before a certificate of appointment of estate trustee has been issued (or later in the context of a motion to recall probate), any person who appears to have a financial interest in the estate may give notice of an objection by filing with the court a notice of objection. The registrar gives notice to the party applying for probate and then ... the whole process is frozen until the court provides directions on the will challenge.

It’s almost too easy to do.

For $150, a will challenger can file a notice of objection. No supporting evidence has to be filed. As a matter of convention, the practice seems to be that most of the notice of objections filed are boilerplate in nature, setting out all the possible grounds for a will challenge regardless of the facts of the case.

In 2010, Justice David Brown commented in Smith Estate v. Rotstein, 2010 ONSC 2117:

... A practice has developed amongst the Estates Bar of filing boilerplate notices of objection; I think it is an unhealthy practice. Form 75.1, the Notice of Objection, requires an objector to indicate her reason for objecting to the issuance of a certificate and continues: ‘such as lack of testamentary capacity, undue influence or unfitness to act as estate trustee’. Although such language simply illustrates the types of objections which can be made, in practice objectors tend to go no further than to include some, or all, of those general objections in their notice.

Use of such boilerplate, in my view, is inadequate and does not comply with the requirement of Rule 75.03(1) to state the ‘ nature ... of the objection’. For example, for the objector in the present case to state in her notice that one of the reasons for opposing the issuance of a certificate is that ‘the deceased was subjected to undue influence’ is, with respect, meaningless. Undue influence by whom? When? By what conduct? Answers to those questions would more properly flesh out the ‘reason’ for the objection, as required by Form 75.1 and, as well, identify the ‘claim’ in respect of which summary judgment might be sought. While I will not take into account on this motion the vagueness of the reasons set out by Ms. Rotstein in her notices of objection, I strongly anticipate that in future summary judgment motions under New Rule 20 the failure of an objector to provide detailed reasons for his or her objection may well operate as a factor in a court's assessment of whether a genuine issue requiring a trial exists.

It is a worthwhile endeavour for those estate planners and litigators to have a discussion, post Smith Estate v. Rotstein, regarding whether the will challenger’s use of a notice of objection and the courts’ treatment of same has changed. That’s what is happening at our lunch and learn seminars on April 26 and May 10, 2023.

In the third and fourth of a number of lunch and learn zoom seminars provided by B'nai Brith Canada and Wagner Sidlofsky: Greg Sidlofsky, Brad Phillips, Peter Neufeld and Mukta Batra will address the state of the law on this issue. The Zoom seminars are set up to promote discussion between counsel on the state of the law today and where it might be heading tomorrow. For more information and to register please access this LINK.

Charles Wagner is designated as a certified specialist in estates and trusts law by the Law Society of Ontario and a partner at Wagner Sidlofsky LLP.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, LexisNexis Canada, Law360 Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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