KUNKEL v WINQUIST, 2022 ABQB 367
2.11: Litigation representative required
2.14: Self-appointed litigation representatives
2.15: Court appointment in absence of self-appointment
2.21: Litigation representative: termination, replacement, terms and conditions
10.47: Liability of litigation representative for costs
The Applicant sought to be appointed as the Litigation Representative for an estate of a deceased person in order to continue a lawsuit brought by the deceased person against the Respondent.
The Court granted the Application, appointing the Applicant as the Litigation Representative for the estate. Leonard J confirmed that, pursuant to Rule 2.11(e), an estate must have a Litigation Representative to bring, defend, or continue an Action where no personal representative has obtained a grant under the Surrogate Rules, Alta Reg 130/1995. Rule 2.14 allows an interested person to self-appoint as a Litigation Representative by filing an Affidavit setting out the following:
(a) the interested person’s agreement in writing to be the Litigation Representative;
(b) the reason for the self-appointment;
(c) the relationship between the Litigation Representative and the individual or estate the Litigation Representative will represent;
(d) a statement that the Litigation Representative has no interest in the Action adverse in interest to the party the Litigation Representative will represent;
(e) if the litigation representative is an individual, a statement that the Litigation Representative is a resident of Alberta; and
(f) an acknowledgment of potential liability for payment of a costs award attributable to or liable to be paid by the Litigation Representative.
In estate matters, Rule 2.14(3) requires that the Affidavit of the interested person must disclose the following:
(a) whether the estate has a substantial interest in the Action or proposed action;
(b) whether the Litigation Representative has or may have duties to perform in the administration of the estate of the deceased;
(c) whether an application has been or will be made for administration of the estate of the deceased; and
(d) whether the Litigation Representative does or may represent interests adverse to any other party in the Action or proposed action.
Once an Affidavit of a self-appointed Litigation Representative has been filed, the interested person is the Litigation Representative for the estate. The Litigation Representative must serve notice of the appointment on the beneficiaries and heirs at law of the deceased. Pursuant to Rule 2.15, an interested person or a party that is adverse in interest may apply to the Court for directions about the appointment of a Litigation Representative. Pursuant to Rule 2.21, the Court has a broad power to appoint or replace a Litigation Representative, terminate the appointment of a Litigation Representative, or impose terms and conditions on a Litigation Representative or the appointment of a Litigation Representative.
Leonard J found that the Applicant met the requirements of Rule 2.14, because the Applicant was an “interested person.” Leonard J did not opine on whether the meaning of the term “interested” attracts an ordinary meaning or legal meaning, with the latter meaning importing the concepts of right, claim, title, or share in an estate. Leonard J found that the Applicant was an “interested person” on either definition.View CanLII Details