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Written by: Laya Witty
Posted on: January 13, 2022
Categories: Commentary
Who has standing in estates issues? Two recent cases clarify some of the issues.
Any person who has a potential interest in an estate has the right to have notice of, and be part of, proceedings challenging a will. Most of theses interests are, or should be, obvious. Any person who is either a beneficiary under the will, or a beneficiary under a past will, or a potential beneficiary under an intestacy, would be included as having an interest. According to a recent case, the estate trustee may also be considered to have an interest in the estate.
In the case of Larmon v. Munro, Larmon v. Munro, 2021 ONSC 1921 (CanLII), the estate trustee applied to the court for directions under rule 75.06 of the Rules of Civil Procedure. This was challenged as she was not a beneficiary of the estate. However, the court ruled that as she had expended her own funds on behalf of the estate, she did have a financial interest in the estate, and therefore was not disqualified from seeking directions from the court.
In the case of Moses v. Moses, Moses v. Moses, 2021 ONCA 662 (CanLII) a son of the deceased, sought to challenge his father’s will. The court ruled that he did not have standing to challenge the will, as he did not have an interest in the estate. The facts of the case are that he would not inherit, according to the terms of his father’s most recent will. Even if his challenge of that will was successful, there was an earlier will, under which he also would not inherit. Therefore, the court ruled, and the Court of Appeal has confirmed, that he did not have standing to challenge the will. The son is also making a civil claim against the estate, and the court did not consider that claim as establishing an interest in the estate.
The theme here is that standing is a low bar, but it is a bar. It appears that being a creditor of an estate would be considered to be a sufficient interest to create standing, but a potential creditor, pursuant to the outcome of a lawsuit, is not sufficient interest to create standing.
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