I have had the pleasure of attending a series of programs dealing with Will challenges held by the OBA Trusts and Estates Section. In the third session, "Navigating the Procedure and Orders Giving Directions", the panel explained the key considerations to which lawyers should turn their minds in determining whether to proceed by action or application in a Will challenge. The panel also explained some of the terms of an order giving directions with which lawyers ought to be familiar in the estate litigation space, and particularly when dealing with a Will challenge.
Action or Application?
In making the choice between bringing an action or an application, the program's speakers shared several factors that counsel should consider: a) complexity of the facts; b) the number of facts in dispute; c) whether there are major credibility issues; and d) whether there are allegations of bad faith. Panelists discussed that applications are meant to be summary proceedings, where the Court may deal with the issue on a paper record. If the facts are complex or credibility is in issue, a paper record may be insufficient. When there are material facts in issue, judges are not equipped to decide matters by way of “de-contextualized affidavits.”[1] Further, in these cases, parties may benefit from the broad discovery process available in an action. Finally, lawyers must recognize that they cannot bring a motion for summary judgment in an application.
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