Notice of Contestation Under Estates Act Issued In Jurisdiction Other Than Application For Appointment As Estate Trustee Merely Irregular, Not A Nullity

Friday's detailed Court of Appeal decision in Omiciuolo v. Pasco, 2008 ONCA 241 considered whether a notice of contestation delivered pursuant to ss. 44 and 45 of the Estates Act was a nullity because it was issued in a different jurisdiction than the jurisdiction in which the application to be appointed Estate Trustee was brought.

The application for appointment as Estate Trustee was brought in Toronto, where the deceased had a "fixed place of abode" at death, as required under section 7 of the Estates Act.  However, the notice of contestation was issued in Newmarket, presumably to avoid the Rule 75.1.02 mandatory mediation requirement for estates matters in Toronto. 

The Court decided that the failure to issue the notice of contestation in Toronto was, at most, an irregularity and one that could be cured by transferring the matter to Toronto.

The decision is dense and carefully crafted; it deals with several issues, the question of irregularity or nullity of the notice being but one of many. It is worth reading by counsel involved in Estate matters; the Court of Appeal gave very close consideration to the issues.

That said, the decision is lengthy and technical and counsel wishing light reading for simple edification might prefer to review some Federal Court taxation decisions.

The Court ruled:

(a)       Irregularity rather than a nullity

[14]          I disagree with the application judge's characterization of the notice of contestation as a nullity because it was issued in Newmarket rather than in Toronto. 

[15]          The appellant applied to be the administrator in Toronto, where the deceased had a "fixed place of abode" at death, because she was required to do so under section 7 of the Estates Act.  However, she issued the notice of contestation in Newmarket.  It is reasonable to infer that she likely did so to avoid the rule 75.1.02 mandatory mediation requirement for estates matters in Toronto. 

[16]          Even if the appellant was entitled to choose Newmarket as her place of commencement under rules 38.03(1) and 13.1.01(1), the respondent unquestionably attorned to the Newmarket jurisdiction.  She did so when she issued a notice of appearance in that court, when she attended on the return of the appellant's initial application and agreed to the interim settlement, and when she filed her own cross-application with the Newmarket court.  Moreover, even if the proceedings should have been commenced in Toronto and not Newmarket, the failure to do so renders them only an irregularity that could have been remedied by a transfer of the proceedings from Newmarket to Toronto.  See rules 2.01 and 2.02 as well as rule 13.1.02 of the Rules.  Accordingly, I cannot agree with the application judge that the appellant's proceedings were a nullity.
James Morton
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