Facts: Adriana Ernst (the “Deceased”) died on February 17, 2022, and appointed her children, Jeanne Ernst (“Ms. Ernst”) and Paul Ernst (“Mr. Ernst”) as her estate trustees. The Deceased executed three Wills during her lifetime in 2005, 2011, and 2016, respectively. Ms. Ernst contested the 2016 Will, which granted an unequal distribution of the estate in favour of Mr. Ernst, on the basis that her mother lacked testamentary capacity or was unduly influenced at the time of the execution of the 2016 Will. David Derfel and Charlie Fuhr, of Derfel Estate Law, represented Ms. Ernst in the proceeding.
On July 22, 2022, Mr. Ernst brought a motion in writing under Rule 37.12.1(1) without notice for relief under Rule 74.15 for an order that Ms. Ernst must file an application for a Certificate of Appointment of Estate Trustee with a Will within 30 days after the Order is served, and if she fails to do so, is deemed to have renounced her right to be appointed as estate trustee. On August 9, 2022, Justice Dietrich granted the Order and served it to Ms. Ernst. On September 8, 2022, Ms. Ernst served a “Notice of Motion to Amend and Vary an Order” under Rule 37.14(1)(a).
Decision: Justice Sanfilippo found that the changes as suggested by Ms. Ernst went beyond a variation and would require the Order to be set aside. Ms. Ernst argued that the Order should be set aside on the basis that Mr. Ernst failed to provide full and fair disclosure of all material facts, as required by Rule 39.01(6). Justice Sanfilippo agreed; when a motion under Rule 74.15 is brought without notice, it is not exempt from the disclosure requirements under Rule 39.01(6).
Alternatively, Justice Sanfilippo noted that the Order also could also have been set aside for failure to bring the motion on notice to Ms. Ernst. Rule 74.15(2) does not exempt a party from providing notice of the motion under Rule 74.l5(a) where the opposing party has responded, engaged counsel on the issue, and stated a position that is inconsistent with the relief sought, such that the relief sought can be presumed to be contested.
Key Takeaway: Orders for assistance in estate matters are not exempt from requirements for full and fair disclosure and, in some circumstances, providing notice of the motion to the other party.