Application for Directions: Asking the Court to Guide the Executor

An executor, or estate trustee, winds up the deceased's affairs by paying taxes, bills and debts, collecting assets and distributing the rest. Sometimes the will is unclear, the family disagrees, or you are simply unsure what you are allowed to do. Guessing wrong can expose you to complaints from beneficiaries.

One option is to ask the court for directions. This article explains in plain terms how that process is generally structured in Ontario, what forms are involved, who must be told, and where mediation can come in.

What "directions" means

Asking for directions means asking the court to tell the estate trustee how to proceed on a particular issue, rather than deciding on your own. It is not the same as a lawsuit seeking money from someone. It is a way to get a ruling on a question before acting on it.

Directions proceedings under rule 75.06 use Form 75.5 (Notice of Application for Directions) or Form 75.6 (Notice of Motion for Directions), both stating the grounds as rule 75.06. Under rule 75.06(4), as amended by O. Reg. 709/21, an order giving directions is in Form 75.8 or 75.9.

Which questions the court will answer, and whether an application or a motion is the right route, depends on the circumstances. A lawyer can tell you whether your situation fits.

Situations where executors consider it

• The will's wording could be read in more than one way, and the beneficiaries read it differently.
• You are unsure how to deal with an asset or a debt and do not want to act without protection.
• Beneficiaries disagree about what the executor should do, or there is a dispute about the trustee or the will, which is also a situation where probate is typically needed.
• There are minor, unborn or mentally incapable beneficiaries whose interests need to be protected.

A named executor is not required to act. If the role feels unclear or risky, speak with a lawyer before accepting it or taking steps in the estate.

Who must be told

Estate court matters often involve people who cannot speak for themselves. The Office of the Children's Lawyer must be served on behalf of a child in several kinds of estate matters, including applications that may affect a child's interest, such as will interpretation, will challenges and trustee removal. It should also be served when there is an unborn or unascertained interest in an estate or trust.

The table reflects the Form 74.17 notice rules for estate trustee applications. Notice requirements in a directions proceeding depend on the issue and the court's rules, so confirm them with a lawyer.

Mandatory mediation in some courts

Rule 75.1 mandatory mediation covers certain estate, trust and substitute-decision lawsuits and applies in Toronto, Ottawa and Windsor (Essex), unless the court grants an exemption. Where it applies, a directions step is built into the process.

Within 30 days after the deadline for filing a Notice of Appearance (Form 75.4), the person who started the proceeding must file a motion for directions (Form 75.6). The parties must choose a mediator within 30 days of the directions order. If they do not, the responsible party asks the local mediation coordinator to assign one (Form 75.1A).

The directions order sets which parties must attend, who has carriage of the mediation, and how the mediation cost is shared. The mediator must notify attendees of the time and place at least 20 days ahead, and each party must give the mediator and the others a Statement of Issues (Form 75.1C) at least seven days before the mediation.

Accounts and the Children's Lawyer

If the Children's Lawyer asks for estate accounts and the trustee does not respond, the Children's Lawyer may ask the court for an order requiring accounts. If the order is granted, the estate trustee must bring an application to pass accounts. Keeping clear records from the start can avoid that outcome.

What to do next

• Write down the specific question you need answered, with the will clause or asset involved.
• Gather the will, any codicil, the death certificate, a list of assets and debts, and a list of beneficiaries with their contact details.
• Identify any minor, unborn or incapable beneficiaries, because they affect who must be notified.
• Avoid distributing assets while the question is open.
• Ask a lawyer whether a directions application, a motion within existing proceedings or another step is appropriate, and how costs are likely to be handled.

Professional costs of legal work are paid from the estate as expenses, but who ultimately bears the cost of a contested court step can depend on the facts, so get advice before filing.

Frequently asked questions