When can a person with an indirect interest in an estate bring an application for the interpretation of a will?

The issue of when an estate without and administrator can be represented solely for the purpose of litigation is often a thorny one.  In the recent Ontario Superior Court of Justice case of Sloan v.  Fox Estate, the Court considered the provisions of Rule 10.02 of the Ontario Rules of Civil Procedure dealing with the appointment of a person to represent an estate for the purpose of bringing an application to interpret the provisions of the will of another deceased (ie. not the will for which the proposed applicant was a beneficiary).  The proposed applicant did not have a direct interest in the will at issue but did have an indirect interest as the beneficiary of an estate which in turn was a beneficiary of the will to be interpreted.  The Court noted the cautionary approach of courts to appointing a person to carry on specific litigation without the burden of administering all aspects of an estate, but concluded in this instance that the appointment was appropriate.  The primary factors in swaying the Court were the fact that the estate of which the proposed applicant was a beneficiary was insolvent and therefore unlikely to attract an administrator; and the acknowledgment of the proposed applicant that she could face personal liability for costs.  Also persuasive was the fact that the matter at issue was strictly the interpretation of a will and not a matter where facts were in dispute, a factor relied on by other courts to deny the appointment of a litigation administrator.  The Court did note that as the proposed applicant is a potential creditor of the insolvent estate as well as a beneficiary, she could not ultimately be appointed estate administrator.  If successful on the interpretation application, an executor would have to be appointed to receive any funds that might be payable from the will subject to interpretation to the insolvent estate.

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