This article is the first in a series of articles, each of which will discuss the available Orders for Assistance under Rule 74.15 of the Rules of Civil Procedure (the “Rules”).
Rule 74 of the Rules governs non-contentious estate proceedings.
Rule 74.15 permits an interested party to seek the Court’s assistance in particular circumstances. This rule provides that “…any person who appears to have a financial interest in an estate may move” to obtain the following Orders:
a) an Order to Accept or Refuse Appointment with a Will (Form 74.36);
b) an Order to Accept or Refuse Appointment without a Will (Form 74.37);
c) an Order to Consent or Object to Proposed Appointment (Form 74.38);
d) an Order to File Statement of Assets of the Estate (Form 74.39);
e) an Order for Further Particulars;
f) an Order to Beneficiary Witness (Form 74.40);
g) an Order to a Former Spouse (Form 74.41);
h) an Order to Pass Accounts (Form 74.42); and
i) an Order for Other Matters.
The ability to seek these orders is expressly stated to be in addition to the relief available under section 9 of the Estates Act, which permits a motion to be brought (whether or not there is a related probate or administration lawsuit or proceeding before the court) for an Order requiring a person to produce any purported testamentary document in her or his possession or control. If the person does not have any such document in his or her possession or control, but there are reasonable grounds to believe the person will have knowledge of the document(s), an Order can be made compelling the person to attend and be examined as a witness.
Who may Bring a Motion under Rule 74.15(1)?
An individual will have standing to bring a motion for an Order for Assistance where it appears that he or she has a “financial interest” in the estate.
The term “financial interest” is not defined in the Rules but has been defined at common law. In Smith v Vance [1], the Divisional Court considered the meaning of “financial interest” (in the context of an individual’s right to file a Notice of Objection under rule 75.03(1)). The Court held that in the absence of limiting language in the Rules, the term “financial interest” should be given its plain and ordinary meaning, stating that a financial interest is “an interest by way of money, or property, or other assets having monetary value.”
Whether an individual has an apparent financial interest in an estate is not always clear, and the nature of the financial interest (i.e. direct, indirect, contingent) is not necessarily determinative of the issue. Instead, the nature of an individual’s financial interest in an estate is “a relevant factor to be considered in assessing the applicant’s position in relation to the provisions of rule 74.15.” (Klatt v Klatt Estate)
For instance, in Re D’Angelo Estate, the court held that an estate trustee, whose only financial interest in the estate was a contingent entitlement to claim estate trustee compensation, was sufficient to give her standing to bring a motion under rule 74.15.
Conversely, in Klatt v Klatt Estate, the Court denied the applicant beneficiary’s request for an order requiring a passing of accounts, in part because the applicant’s financial interest in the trust in question was contingent in nature and the relief sought could negatively affect the interests of other potential contingent beneficiaries given the modest size of the trust. Notably, the Court also made reference to the fact that notice did not appear to have been provided to the other contingent beneficiaries of the estate whose interest might be affected by the order sought.
In addition, and with respect to creditors, case law indicates that rules 74 and 75 are not intended to benefit creditors by allowing them to secure recovery of assets within an estate.
In Belz v Mernick Estate, a judgment creditor sought to obtain information concerning the assets of an estate under which the debtor was a residuary beneficiary and a determination of the debtor’s entitlement by way of an Order Giving Directions under rule 75.06 and for an Order for Assistance under rule 74.15(1)(d), requiring for the estate trustees to file with the Court a statement of assets. The Court held that the judgment creditor was not entitled to the relief requested, as the interest of the judgment creditor was an interest in the beneficial interest of the beneficiary debtor therein. Further, the Court noted that the interest was derivative in nature, an “interest arising out of the judgment debt [and] not an interest in the estate in any sense similar to the ‘financial interest’ referred to in rule 75.06(1).”
Similarly, in HSBC Bank Canada v Capponi Estate, the Court, citing Justice Haley’s decision in Belz v Mernick Estate, held that the bank did not have standing to move for an order under rule 74.15(1)(d) requiring the filing of a Statement of Assets, as rules 74 and 75 were not intended to secure recovery of assets within an estate. Notably, the Court also made reference to the fact that the bank’s entitlement to payment as a creditor in this case remained in dispute.
Rule 74.15 provides powerful tools for individuals requiring assistance with respect to issues that arise in estate administration and who have a financial interest in the estate. For more information on how to obtain an Order for Assistance, please contact David A.S. Mills or Lauren A. Kason.
[1] Smith v Vance, 1997 CarswellOnt 1554, [1997] O.J. No. 6534, 12 C.P.C. (4th) 391.
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