Appointing a Litigation Representative for an Estate
The Alberta Rules of Court, Alta Reg 124/2010 instruct that an estate for which no personal representative has obtained a grant under the Surrogate Rules, Alta Reg 130/95, and that has an interest in a claim, must have a litigation representative to bring or defend an action, or to continue or to participate in an action, or for an action to be brought or to be continued against the estate.
There are three types of litigation representatives:
- Automatic litigation representative – a person is an automatic litigation representative for an estate if the person as the authority to commence, compromise, settle or defend a claim on behalf of the estate under any of the following:
- an enactment, an instrument authorized by an enactment, or an order authorized by an enactment;
- a grant or order under the Surrogate Rules; or
- an instrument, other than a will, made by a person, including, without limitation, a power of attorney or trust [Note: a power of attorney terminates on death so would not provide the authority for an automatic litigation representative of a deceased person’s estate].
- Self-appointed litigation representative – an interested person may file an Affidavit in Form 1 of the Alberta Rules of Court containing the prescribed information, and by doing so becomes the litigation representative for the estate. The interested person must then serve the notice of appointment in Form 2 of the Alberta Rules of Court on the beneficiaries and heirs of the deceased.
A Form 1 – Affidavit of Self-Appointed Litigation Representative requires the following information:
- an agreement in writing to be the litigation representative;
- the reasons for the self-appointment as the litigation representative;
- the relationship between the self-appointed litigation representative and the estate;
- confirmation that the self-appointed litigation representative has no interest in the action adverse in interest to the estate represented;
- confirmation that the self-appointed litigation representative is a resident of the Province of Alberta.
- acknowledgment of potential liability for payment of a costs award in the proceedings;
- confirmation that the estate has a substantial interest in the matter;
- whether the self-appointed litigation representative has or may have duties to perform in the administration of the estate;
- whether an application has been, has not been, or will be made for the administration of the estate; and
- confirmation of whether the self-appointed litigation representative does, does not, or may represent interests adverse to any other party in the action.
- Court-appointed litigation representative – if an estate is required to have a litigation representative but does not, an interested person may, or if there is no interested person, a person adverse in interest must, apply to the Court for directions about the appointment of a litigation representative for the estate.
In the recent decision of Kunkel v Winquist, 2022 ABQB 367, Justice Leonard heard an application regarding the appointment of Ms. Jeanette Kunkel as a litigation representative for the Estate of Mr. James Sander. Mr. Sander died unexpectedly of a heart attack without a will. No one had applied for administration his Estate.
Ms. Kunkel filed a Form 1 – Affidavit of Self-Appointed Litigation Representative for Mr. Sander’s Estate and served Mr. Sander’s beneficiaries and heirs at law with a Notice of Appointment. Ms. Kunkel thereafter, and in her capacity as litigation representative for Mr. Sander’s Estate, commenced an action against Ms. Donna-Mae Winquist alleging financial improprieties and breaches of fiduciary duties while Ms. Winquist was acting under a Power of Attorney and as a de facto Personal Representative for Mr. Sander’s previously deceased mother’s Estate.
Ms. Winquist opposed the appointment of Ms. Kunkel as the litigation representative of Mr. Sander’s Estate on various grounds including:
- That Ms. Kunkel was not Mr. Sander’s adult interdependent partner and as such did not have priority to apply for a grant of administration.
Justice Leonard dismissed this argument, confirming that there was nothing in the language of the Alberta Rules of Court, or in the caselaw, to suggest that the litigation representative of an estate must be a person who is entitled to apply for a grant of administration. Instead, when appointing a litigation representative, the primary goal of the Court is to ensure the interests of the estate are represented. Most importantly, the litigation representative should not be in conflict with the interests of the estate.
- That Ms. Kunkel falsely identified herself as Mr. Sander’s spouse in her Form 1 – Affidavit of Self-Appointed Litigation Representative.
Justice Leonard dismissed this argument, opining that self-appointment of a litigation representative is not conditional on the legal status of the person swearing the affidavit. Instead, what the Alberta Rules of Court require is for the person swearing the affidavit to identify their reasons for self-appointing. Consideration was given to the definition of “interested person”. Justice Leonard concluded that (a) regardless of the precise definition, Ms. Kunkel was an interested person in Mr. Sander’s Estate; and (b) that on the ordinary definition of the word “interested”, Ms. Kunkel was involved in Mr. Sander’s life and his role in managing his mother’s Estate, clearly played a significant role in Mr. Sander’s life and was a significant person to him, and was also involved in the legal steps Mr. Sander took to deal with Ms. Winquist’s management of their mother’s estate before his passing. Ms. Kunkel was found to have a legal and personal interest in Mr. Sander’s Estate. The requirements to be a self-appointed litigation representative under rule 2.14 were found to have been met.
- That there were people in a better position to act as litigation representatives of Mr. Sander’s Estate.
Justice Leonard dismissed this argument, confirming that Ms. Kunkel was the only person who put her name forward to act as litigation representative. In response to Ms. Winquist’s suggestion that she would be in a better position to act as a litigation representative, Justice Leonard noted that as the Defendant in the action, Ms. Winquist would clearly be in a conflict of interest and could not be appointed.
Justice Leonard referenced his broad authority to appoint or replace a litigation representative under Rule 2.21 of the Alberta Rules of Court but noted further that an application to remove a litigation representative is not be used in place of an application for summary judgment. In this case, if Ms. Kunkel were removed as litigation representative, the litigation would not proceed, and the case would never be resolved. As such, Justice Leonard found that the interests of justice supported appointing a litigation representative to conduct the estate litigation. In this case, Ms. Kunkel was the only person who has stepped forward, and there was no reason to deny her appointment as litigation representative of Mr. Sander’s Estate.