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From time to time I am asked the question whether an individual, given their relationship to an estate, has standing to start or participate in a court proceeding to resolve an issue with respect to the estate. In particular, a potential beneficiary may not know whether there is a will or whether any gift has been left to them in a will, and therefore, may wonder how they can be involved in a court proceeding.  As Sloan v. Witkin, 2011 ONSC 3747 (CanLII) demonstrates, determination of the person`s standing will depend on whether the type of issue they are trying to resolve gives them standing as per relevant legislation.

Sloan v. Witkin was a case wherein a potential beneficiary`s standing to launch a court proceeding was questioned, particularly because there was no executor or estate administrator who would normally be responsible to see to such a proceeding.  Specifically at issue on two motions before the court was whether a person with an indirect interest in an estate may bring an application for the interpretation of a will.

Arna Sloan is a 30% beneficiary and asserted that is she is a creditor of the Estate of Elliot Moldaver (the “Moldaver Estate”). Elliot Moldaver, in turn, was a beneficiary of the estate of his mother, the late Eve Fox (the “Fox Estate”). A portion of the residue of her estate was set aside in a fund to be paid out to him over time. After Mr. moldaver died, the issue arose as to what should happen to the portion of the bequest to Mr. Moldaver that had not been paid out to him prior to his death. The sole executor of the Moldaver Estate ‑ Mr. Moldaver’s sister, Ms. Rosalind Witkin renounced her position as executor. She is a beneficiary of the Fox Estate, and not the Moldaver Estate, and therefore was in a conflict of interest.

Apparently, but for any entitlement under the will of his late mother, which Ms. Sloan states to be about $350,000, the estate of Elliot Moldaver is insolvent. No replacement executor had been appointed for the Moldaver Estate. Ms. Sloan was in a relationship with Mr. Moldaver at the time of his death.

The executors of the Fox Estate had not sought a court determination of who is entitled to the bequest made to Mr. Moldaver as a consequence of his death. Ms. Sloan accordingly brought such an application in her personal capacity, in the absence of an executor or administrator of the Moldaver Estate, or, in the alternative, appointing her to represent the Moldaver Estate for the purposes of the application to interpret the will.

Ms. Sloan understood that, if she were granted standing to make the application, and she is not successful, she would be responsible for legal costs, if not ordered payable by the Fox Estate.

The court examined relevant case law which stated that as a general policy consideration, a court should be very cautious in granting authority to a person to carry out litigation when they are not the executor and as such do not have the burden of administering the entire estate.

In the end, the court granted Ms. Sloan`s motion to be able to bring an application for the interpretation of Eve Fox`s will which was permitted by statute.  Insodoing, the court observed that she was not trying to bring an action where facts are in dispute.

If you or someone you know has an estate issue which must be resolved but are unsure whether you or they have standing to bring it before a court, please contact Andrea Kelly.


Andrea Kelly, Lawyer, has extensive experience in wills, trusts, powers of attorney and estate administration matters.  She provides clients with a high standard of timely professionalism and expertise, incorporating a very thorough fact finding process.  This is quite often enlightening for her clients and facilitates individually tailored services.  If you would like to know more, feel free to use the easy contact form or read Andrea’s bio.

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