2.11: Litigation representative required
2.15: Court appointment in absence of self-appointment
2.16: Court-appointed litigation representatives in limited cases

Case Summary

The Applicant, the Calgary Health Trust (“CHT”), was initially a beneficiary named in the will of a deceased person’s estate (the “Estate”). CHT brought an emergency Application against the Respondents seeking an Attachment Order, as there appeared to be evidence that the Respondents were selling off the property that had previously been deemed by the Surrogate Court to be security for claims of CHT.

CHT sued the Respondents (who were a past personal representative of the Estate, and the past personal representative’s wife) in Surrogate Court after it was discovered money had been improperly paid out of the Estate.

The Respondents alleged that CHT had no standing to bring an Application for an Attachment Order because the Estate Administration Act, SA 2014, c E-12.5 precludes anyone except the named personal representative from doing so. However, prior to the Application for an Attachment Order being heard, CHT had obtained an ex parte Court Order in the Surrogate Action appointing CHT as the litigation representative of the Estate.

The Respondents claimed that the Order appointing CHT as the personal representative of the Estate should not have been issued under Rule 2.16, which they argued applied only to situations where the Court must appoint a litigation representative for an estate which has no personal representative. The Court disagreed and found that while Rules 2.11 and 2.15 address the situation described by the Respondents, Rule 2.16(c), under which the Order appointing CHT as the personal representative of the Estate was made, addresses a situation where it is expedient to make such an appointment concerning an Action involving the administration of an estate. The Court hearing the Application assumed that this requirement had been met to the satisfaction of the Surrogate Court Justice and confirmed that CHT had standing to bring the Application. It ultimately granted a form of Attachment Order sought by CHT against the Respondents.

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