Estate Planning

You Can Run But You Can't Hide

By Hull & Hull LLP

Testamentary instruments, that is.

A common burr among beneficiaries is that the estate trustee often resists disclosing the deceased's Will or other testamentary instruments.  Without reviewing the entirety of the testamentary instruments, beneficiaries may never feel certain of the extent of their interest in an estate.  This strategy tends to add fuel to pre-existing distrust among the parties. 

Fortunately, there is a simple solution.  By section 9(1) of the Estates Act, any person may be forced to produce any testamentary instrument, and by section 9(2) any person with knowledge of a purported testamentary instrument can be forced to answer questions about the document:

9.  (1)  Whether a suit or other proceeding is or is not pending in the court with respect to a probate or administration, the Superior Court of Justice may, on motion or otherwise in a summary way, order any person to produce and bring before the registrar, or otherwise as the court may direct, any paper or writing being or purporting to be testamentary that is shown to be in the possession or under the control of such person.

(2)  If it is not shown that such paper or writing is in the possession or under the control of such person, but it appears that there are reasonable grounds for believing that he or she has knowledge of such paper or writing, the court may direct such person to attend for the purpose of being examined in open court or before the registrar or such person as the court may direct, or upon interrogatories respecting the same, and to produce and bring in such paper or writing, and such person is subject to the like process in case of default in not attending or in not answering questions or interrogatories or not bringing in such paper or writing, as the person would have been subject to if he or she had been a party to a suit in the court and had made such default, and the costs of such motion or other proceeding are in the discretion of the court.

With these provisions, motions are often not necessary.  A simple letter bringing the provision to the attention of the estate trustee along with a polite request to produce the document(s) is all that should be required.  By the same token, estate trustees (or anyone else with possession or knowledge of documents purporting to be testamentary) have no justification for secrecy.  Happily, this provision creates a powerful incentive for information-sharing, which is often a prerequisite to ending or preventing an estates dispute.

Have a great day,

Chris Graham

Full post as published by Toronto Estate Law Blog on December 23, 2009 (boomark / email).