This article is the third in a series of articles discussing the available Orders for Assistance under Rule 74.15 of the Rules of Civil Procedure (the “Rules”). This article focuses on the orders that can be obtained under section 9 of the Estates Act, with respect to the production of documents purporting to be testamentary or examinations of individuals with knowledge of such documents.

Orders for Productions & Examinations with respect to Testamentary Documents

Section 9 of the Estates Act[1] enables a party to obtain an order directing the production of any document purporting to be testamentary. Such order may be obtained in advance of or in the absence of an Application for a Certificate of Appointment of Estate Trustee or other judicial proceeding.[2]

In the event that the moving party cannot satisfy the court that a document purporting to be testamentary is in the possession of a particular individual, but can demonstrate there is good reason to believe that such person has knowledge or information concerning the document, such individual can be ordered by the Court to attend an examination in respect of the same.[3]

The full text of section 9 of the Estates Act is as follows:

(1) Whether a suit or other proceeding is or is not pending in the court with respect to a probate or administration, the Ontario Court (General Division) 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 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 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.[4]

PRACTICE TIP: An Order for Production under section 9(1) of the Estates Act can be a useful tool in cases where there are multiple documents purporting to be testamentary in the hands of more than one individual, each of whom claims to be in possession (or have knowledge of) a valid testamentary document of a deceased person.

In Brian Schnurr’s Estate Litigation, the author provides a helpful example of when this type of order may be appropriate, namely, where a party wishes to challenge the validity of a Will and it is unknown whether the estate trustee will apply for a Certificate of Appointment.[5] Since there is nothing to prevent the estate trustee from administering the estate as his or her authority is derived from the Will itself, an individual who files a Notice of Objection and who intends on challenging the validity of the Will should also obtain an order under section 9(1) requiring the estate trustee to deliver the Will to the court.[6]

Rule 74.15 provides useful tools for individuals requiring assistance with respect to issues that arise in estate administration. For more information on how to obtain an Order for Assistance, please contact David A.S. Mills or Lauren A. Kason.

For previous posts in this series, see the links below:

Part One: Who is permitted to bring a motion under Rule 74.15?

Part Two: The procedure for obtaining an Order for Assistance and the associated notice requirements.

[1] Estates Act, R.S.O. 1990, c. E. 21

[2] Ibid, section 9(1).

[3] Ibid, section 9(2).

[4] Ibid, section 9.

[5] Brian A. Schnurr, Estate Litigation, Volume 1, 2d ed. (Toronto: Thomson Reuters) at page 3-4.

[6] Ibid.

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