Orders for directions can be sought at any time where appropriate in the context of estate litigation. However, parties typically seek such an order at the outset of the litigation. Moreover, it usually becomes apparent to the parties early on that many will or POA challenges, which are commenced by way of notice of application, should be converted into a trial of an issue(s). Obviously, this is an opportune time to seek directions from the court.
In the recent decisions of Re Estate of Ireni Traitses (see our blog post) and Estate of Lorraine Coombs, Justice Brown held that the principle of proportionality as set out by the Supreme Court of Canada in Hyrniak v. Mauldin applied to orders for directions. In light of this principle, counsel should attempt to tailor their proposed order for directions in relation to the needs of their case, including the size of the estate. For example, according to Justice Brown, in will challenges involving modest estates which require a judge to make findings of credibility, the optimal procedure will be to limit pre-hearing discovery. Justice Brown has held in such cases that written interrogatories and a short hybrid trial (with evidence in chief given by way of affidavit, with time-limited cross-examinations), is the preferable procedure.
Whether these kinds of orders for directions will become prevalent in future remains to be seen. Regardless, counsel should be alert to crafting their orders for directions with the proportionality principle in mind.
To read more about this, check out our paper here.