An estate trustee or any person appearing to have a financial interest in an estate may make an application under rule 75.06 to have a testamentary instrument that is being put forward as the last will of the deceased proved in such manner as the court directs. O. Reg. 484/94, s. 12; O. Reg. 24/00, s. 15.
The validity and contents of a will that has been lost or destroyed may be proved on an application,
(a) by affidavit evidence without appearance, where all persons who have a financial interest in the estate consent to the proof; or
(b) in the manner provided by the court in an order giving directions made under rule 75.06. O. Reg. 484/94, s. 12.
Notice of Objection
(1) At any time before a certificate of appointment of estate trustee has been issued, any person who appears to have a financial interest in the estate may give notice of an objection by filing with the registrar or the Estate Registrar for Ontario a notice of objection (Form 75.1), signed by the person or the person’s lawyer, stating the nature of the interest and of the objection. O. Reg. 484/94, s. 12; O. Reg. 24/00, s. 16; O. Reg. 575/07, s. 1.
Expiry, Withdrawal and Removal of Notice of Objection
(2) A notice of objection expires three years after it is filed and may be withdrawn by the person who filed it at any time before a hearing for directions under rule 75.06 in an application for the certificate or may be removed by order of the court. O. Reg. 484/94, s. 12.
Notice to Applicant
(3) Where an application for a certificate of appointment of estate trustee has been made and a notice of objection is filed, the registrar shall send notice of the filing (Form 75.2) by regular lettermail to the applicant or the applicant’s lawyer at the mailing address shown in the application. O. Reg. 484/94, s. 12; O. Reg. 575/07, s. 1.
Notice to Objector
(4) An applicant who receives a notice under subrule (3) shall serve on the objector a notice to objector (Form 75.3) and file a copy of the notice and proof of service with the court. O. Reg. 484/94, s. 12.
(5) Where the objector does not serve and file a notice of appearance (Form 75.4) within 20 days after service of the notice to objector, the application shall proceed as if the notice of objection had not been filed. O. Reg. 484/94, s. 12.
Motion for Directions
(6) If the applicant does not move for directions within 30 days after service of the notice of appearance, the objector may move for directions. O. Reg. 484/94, s. 12.
On the application of any person appearing to have a financial interest in an estate, the court may revoke the certificate of appointment of the estate trustee where the court is satisfied that,
(a) the certificate was issued in error or as a result of a fraud on the court;
(b) the appointment is no longer effective; or
(c) the certificate should be revoked for any other reason. O. Reg. 484/94, s. 12; O. Reg. 24/00, s. 17.
Motion for Return of Certificate
(1) The court may, on motion, order that a certificate of appointment be returned to the court where,
(a) the moving party seeks a determination of the validity of the testamentary instrument for which the certificate was issued or of the entitlement of the estate trustee to the certificate; or
(b) an application has been made under rule 75.04. O. Reg. 484/94, s. 12.
Notice
(2) The motion may be made without notice unless the court orders otherwise. O. Reg. 484/94, s. 12.
Effect of Order
(3) On service of the order to return the certificate of appointment, the estate trustee shall forthwith deposit the original certificate with the registrar, and the appointment has no further effect and shall not be acted on until,
(a) the issues referred to in clause (1) (a) or the application referred to in clause (1) (b), as the case may be, have been determined by the court; or
(b) the release of the certificate is ordered under subrule (6). O. Reg. 484/94, s. 12.
Motion for Directions
(4) A party who obtains an order under clause (1) (a) shall move for directions under rule 75.06 within 30 days after the making of the order. O. Reg. 484/94, s. 12.
(5) The estate trustee may at any time move for directions under rule 75.06 for determination by the court of the matters referred to in clause (3) (a). O. Reg. 484/94, s. 12.
Release of Certificate
(6) If a motion for directions referred to in subrule (4) or (5) is not made, the court may, on motion of the estate trustee without notice, order the release to the estate trustee of the certificate of appointment. O. Reg. 484/94, s. 12.
(1) Any person who appears to have a financial interest in an estate may apply for directions, or move for directions in another proceeding under this rule, as to the procedure for bringing any matter before the court. O. Reg. 484/94, s. 12; O. Reg. 24/00, s. 18 (1).
Service
(2) An application for directions (Form 75.5) or motion for directions (Form 75.6) shall be served on all persons appearing to have a financial interest in the estate, or as the court directs, at least 10 days before the hearing of the application or motion. O. Reg. 484/94, s. 12; O. Reg. 24/00, s. 18 (2).
Order
(3) On an application or motion for directions, the court may direct,
(a) the issues to be decided;
(b) who are parties, who is plaintiff and defendant and who is submitting rights to the court;
(c) who shall be served with the order for directions, and the method and times of service;
(d) procedures for bringing the matter before the court in a summary fashion, where appropriate;
(e) that the plaintiff file and serve a statement of claim (Form 75.7);
(f) that an estate trustee be appointed during litigation, and file such security as the court directs;
(f.1) that a mediation session be conducted under rule 75.1;
(g) such other procedures as are just. O. Reg. 484/94, s. 12; O. Reg. 290/99, s. 1.
(4) An order giving directions shall be in Form 75.8 or 75.9. O. Reg. 484/94, s. 12.
Defendant: Statement of Defence, Statement of Defence and Counterclaim or Submission of Rights to Court
(1) Where a statement of claim is delivered as directed under subrule 75.06 (3), each defendant served may serve on each party and file with proof of service,
(a) a statement of defence or a statement of defence and counterclaim; or
(b) a statement of submission of rights to the court (Form 75.10). O. Reg. 484/94, s. 12.
Plaintiff: Reply or Reply and Defence to Counterclaim
(2) A plaintiff may deliver a reply or a reply and defence to counterclaim. O. Reg. 484/94, s. 12.
(3) Revoked: O. Reg. 740/94, s. 5.
Effect of Failure to File Pleadings
(4) A person who is served with a statement of claim and who does not file a statement of defence, a statement of defence and counterclaim or a statement of submission of rights to the court is not a party to the proceeding and his or her consent to any settlement, agreement or consent judgment is not required. O. Reg. 484/94, s. 12.
Where a person files a statement of submission of rights to the court in response to service of a statement of claim or on a motion or application for directions,
(a) the person is not a party to the proceeding and is entitled only to service by the plaintiff of written notice of the time and place of the trial and a copy of the judgment disposing of the matter;
(b) the person is not entitled to costs in the proceeding and is not liable for costs, except indirectly to the extent that costs are ordered to be paid out of the estate; and
(c) a judgment on consent following settlement shall not be given without,
(i) the written consent of the person, or
(ii) an affidavit of a lawyer of record in the proceeding attesting that a notice of settlement (Form 75.11), appended as an exhibit to the affidavit, has been personally served on the person and no rejection of settlement (Form 75.12) has been filed with the court within 10 days after service of the notice. O. Reg. 740/94, s. 6; O. Reg. 575/07, s. 32.
Notice of Contestation of Claim
(1) A notice of contestation of a claim under section 44 or 45 of the Estates Act shall be in Form 75.13. O. Reg. 484/94, s. 12.
Claims
(2) A claim made against an estate under section 44 or 45 of the Estates Act shall be in Form 75.14. O. Reg. 484/94, s. 12.
Service
(3) The claimant shall serve the claim on the estate trustee and file the claim and the notice of contestation, with proof of service, within 30 days after service of the notice of contestation on the claimant. O. Reg. 484/94, s. 12.
Date of Trial
(4) When the claim and notice of contestation are filed, the registrar shall fix a date for trial. O. Reg. 484/94, s. 12.
Manner of Trial
(5) The trial shall proceed in a summary manner unless the judge considers it appropriate to give directions as to the issues, parties and pleadings. O. Reg. 484/94, s. 12.
(1) The lawyer who takes any of the following steps on a party’s behalf is the party’s lawyer of record:
1. Filing a notice of objection under rule 75.03.
2. Moving for return of a certificate under rule 75.05.
3. Moving for directions under rule 75.06. O. Reg. 484/94, s. 12; O. Reg. 575/07, s. 33.
(2) Rule 15.02 applies, with necessary modifications, as if the notice or motion were an originating process. O. Reg. 484/94, s. 12.