1.2: Purpose and intention of these rules
6.8: Questioning witness before hearing

Case Summary

The Applicants were challenging the will of their late father and applied to the Court for advice and direction as to whether a party can be compelled to attend and produce records for Questioning ahead of an Application in Surrogate Court.

The Applicants had an outstanding Surrogate Court Application to set aside an informal grant of probate and to direct a Trial to formally prove the will. They alleged that their father either lacked testamentary capacity or that undue influence was exercised over him by other family members. The Applicants sought to compel the deceased's other children, who were the personal representatives of the deceased's estate, to attend Questioning and produce certain potentially relevant records.

Rule 774(1)(b) of the Surrogate Rules, Alta Reg 130/95 (the “Surrogate Rules”), states that on Application by a person interested in the estate, the Court may set aside an informal grant of probate and require formal proof of a will. The personal representatives argued that the Surrogate Rules governed, and despite Rule 6.8 of the Alberta Rules of Court, pre-Application Questioning was not available. Rule 6.8 permits Questioning to assist with an Application before the Court.

The Court noted that Rule 2(1) of the Surrogate Rules confirms that the Alberta Rules of Court generally apply to Surrogate proceedings and applications. Although the Surrogate Rules contemplate pre-Trial rather than pre-Application discovery, Questioning under Rule 6.8 is not discovery because the scope of questions and document production is limited. Additionally, Rule 64(1)(a) of the Surrogate Rules expressly contemplates the possibility of oral evidence for an Application, although the process for collecting and presenting that evidence is not described. Rule 6.8 supplies the necessary procedure.

The Court noted that the foundational principles in Rule 1.2 apply to the Surrogate Rules as well. These foundational principles balance the Court's truth-seeking function against the objective of timely and affordable process. The Court therefore allowed Rule 6.8 Questioning to be conducted ahead of the Surrogate Court Application.

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