Estate Planning

Variation of Trusts - The Litigation Guardian

By Hull & Hull LLP

In yesterday’s blog on the procedure typically involved with a variation of a trust proceeding under the Variation of Trusts Act, I mentioned that today I would touch upon the need to appoint a litigation guardian for a minor, unascertained, unborn and/or for an incapable party in such a proceeding. 

Rule 7 of the Rules of Civil Procedure regulates the bringing of proceedings by or against parties under disability.  As set out in the commentary to the Rule, “its central requirement is that persons under disability must be represented by a litigation guardian…Rule 7.02 creates a presumptive right for a mentally incapable person’s guardian or attorney under power of attorney to act as litigation guardian, so long as the guardian or attorney has the authority to act by the terms of his or her appointment as guardian or attorney.”  

However, a litigation guardian for such a defendant or respondent must be appointed by the Court.  The procedure for same is set out in Rule 7.03.  Unless there is some other proper person willing to act as litigation guardian, the Court is to appoint the Children’s Lawyer or the Public Guardian and Trustee as applicable.

Rule 7.03(2), specifically requires, however, that where a proceeding (ie. a variation of trust) is against a minor in respect of the minor’s interest in an estate or trust, the Children’s Lawyer shall act as the litigation guardian of the minor respondent, unless the Court orders otherwise.

It may also be that a representation order, pursuant to Rule 10 of the Rules of Civil Procedure, is required to have a person appointed to represent persons who are unborn or unascertained and have an interest in the trust.

Although Rule 10 does not refer specifically to the Children’s Lawyer, the Courts have traditionally appointed the Children’s Lawyer to represent this class of beneficiaries.

If there is more than one group of incapacitated beneficiaries requiring representation by the Children’s Lawyer, the Public Guardian and Trustee will often represent one group if there is a conflict of interest.

Thanks for reading.  Craig

Full post as published by Toronto Estate Law Blog on October 15, 2008 (boomark / email).