Estate Planning

Appeals and the Estates Act

By Hull and Hull LLP

Section 10(1) of the Estates Act provides that appeals in proceedings under the Act are to be made to the Divisional Court.  This is a procedural holdover from the old days before the Surrogate Court was merged with the Superior Court of Justice (or more perhaps more accurately, acquired by). The Surrogate Court was an inferior court, and therefore appeals had to be made to the Divisional Court. 

By section 10(2), any person beneficially interested in the estate may appeal, even if the personal representative does not.  This provision resolves potential technical complications associated with standing.  It is also required from a practical perspective since in many cases, the personal representative is also a litigant personally, and is largely and acceptably silent in his or her capacity as personal representative.

Note that this provision does not preclude appealing to the Court of Appeal, which by section 6(2) of the Courts of Justice Act has jurisdiction to hear and determine an appeal that lies to the Divisional Court, if an appeal in the same proceeding lies to and is taken to the Court of Appeal.   

Have a great day,

Chris Graham

Full post as published by Toronto Estate Law Blog on July 13, 2010 (boomark / email).