The many steps in challenging a will

By Charles Wagner

Law360 Canada (May 16, 2023, 2:48 PM EDT) --
Charles Wagner
Charles Wagner
In estate litigation there are certain landmark moments that profoundly influence the case. One such occasion is the first court appearance and the order for directions that is obtained from the court. The litigators appear for 15 minutes before a judge and haggle over the terms of the order. Often senior counsel exchange drafts and hammer out the particulars of the order for directions before the first court appearance. How to prepare for that first court appearance is a very important skill for estate litigators to master. It is an excellent topic for a continuing legal education (CLE) seminar.

The B’nai Brith Estates and Trust Group provides CLE programs for the legal community. In our lunch and learn series titled “Will Challenges From Start To Finish” — Craig Vander Zee and Tanisha Tulloch of Torkin Manes LLP will present a paper and speak about the first court appearance and the process of drafting, negotiating and arguing, if necessary, the terms of the first order for directions. Why did the organizers choose Craig and Tanisha to present this topic?

Over 16 years ago the Ontario Bar Association ran a program titled “Will Challenges From Notice Objection To Trial.” Craig Vander Zee presented a paper, titled, “The First Court Appearance and Orders,” which was nothing short of excellent. As a matter of fact, that 2007 paper is mandatory reading for any new junior who joins our firm. However, a lot has changed in almost two decades. It is for that reason that we invited him and his partner, Tanisha Tulloch, to revisit and update that paper.

It is very important for litigators to get a proper grasp on how to prepare for the first court appearance. To do so requires a familiarity with the relevant rules and how to best frame the order to enable the court to provide a proper roadmap for the litigation.

It needs to deal with the timing of discoveries, mediation and address issues like the freezing of assets. So, as to allow an expeditious fair trial on the merits the litigator must address whether the particular case before the court is one best suited to be handled with or without viva voce evidence. Is it suited to be done with a summary trial? What specific provisions should be included to protect a lawyer who is named as a respondent, and how do you deal with the deemed undertaking rule? What about the administration of the estate in the interim — is an estate trustee during litigation warranted? What about an accounting? What about mediation? If it’s in Toronto that’s mandatory — but what if the case is being heard outside of Toronto?   

The first court appearance is extremely important to other parties besides the litigants and counsel. In a will challenge the drafting lawyer is key. His/her file will be produced and without a question he/she will be examined. Depending on the facts, allegations of negligence may arise. How the terms of the first order are drafted impact on whether the lawyer will be compensated for appearing at examinations and whether the evidence produced can be used against him/her in a pending lawsuit. The drafting lawyer is not the only one with an interest.

The banks and Insurance companies need notice and have an interest in how these orders are drafted. In the ordinary course the will challenger will want estate assets frozen until the proper beneficiaries are judicially determined. The best drafted orders balance freezing the estate assets sufficiently to protect the competing interests while allowing for the common interest on paying the legitimate ongoing administrative costs of the estate. Unless they are provided with notice of the proceedings, judges are loath to make orders that will impact non-parties as well.

The luncheon learn series is scheduled to take place on May 24, 2023, starting at 12 p.m. Whether you are an experienced estate litigator or a novice this free Zoom seminar is worthwhile for counsel to attend and enjoy seasoned experienced litigators discussing this pivotal issue in the litigation. 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.

Photo credit / Nuthawut Somsuk ISTOCKPHOTO.COM

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