Notice of Objection

Rules 75.03 (1) of the Rules of Civil Procedure provides;

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.

A notice of objection is a powerful tool. It essentially is one of the documents which commences a will challenge.

A valid notice of objection will cause the Estate Registrar to refrain from issuing a certificate of appointment of estate trustee and thereby can halt and/or prevent the distribution of a deceased’s assets.

Rules 75.03 (2) of the Rules provides:

A notice of objection expires three years after it is filed and may be withdrawn by the person who filed it at any time before a hearing for directions under rule 75.06 in an application for the certificate or may be removed by order of the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.

Form 75.1, the Notice of Objection, requires an objector to indicate his/her reason for objecting to the issuance of a certificate of appointment 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. (Smith Estate v. Rotstein (2010), 56 E.T.R. (3d) 216 (Ont. S.C.)).

Use of such boilerplate may be considered by the court to be inadequate and not in compliance with the requirement of Rule 75.03(1) to state the “nature…of the objection”.

For example, in Smith Estate v. Rothstein (2010), 56 E.T.R. (3d) 216 (Ont. S.C.), the objector stated in her notice that one of the reasons for opposing the issuance of a certificate is that “the deceased was subjected to undue influence”. This was considered by Justice Brown to be “meaningless” and lacked the required particularity fleshing out the reasons for the objection (i.e. undue influence by whom, when, what conduct, etc.).

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 exits and can cause the responding party to seek summary judgment prior to the motion for directions.

Estate litigation proceedings, including will challenges, can be extremely complex.