In Litigation, Does an Estate Need to be Represented by a Lawyer?
In Oommen v. Ramjohn, 2015 ABCA 34, the Alberta Court of Appeal held that an estate must be represented by a lawyer, not a self-represented litigant.
In this case heard by the Honourable Justice Veldhuis, Mr. Oommen was one of the co-Executors named in the deceased’s Will. He had not applied to probate the deceased’s Will. Prior to his death, the deceased had obtained judgment in a civil action against Mr. Ramjohn, which remained outstanding after the deceased’s passing. Mr. Oommen was attempting to enforce this judgment on behalf of the estate without the assistance of counsel. Pursuant to Rule 2.14 of the Alberta Rules of Court, Mr. Oommen had also appointed himself as the estate’s litigation representative.
The Court of Queen’s Bench found that Mr. Oommen did not have the ability to represent the estate in that Court; Mr. Oommen appealed that decision.
The Court of Appeal determined as follows:
- Rule 2.22 of the Alberta Rules of Court states that individuals may represent themselves in an action, but an estate is not an individual, as an estate is a separate legal entity.
- Rule 2.14(1) of the Alberta Rules of Court, concerning the self-appointment of litigation representatives, refers to an individual or an estate, indicating that the two concepts are distinct and different.
- Section 106(1) of the Legal Profession Act, RSA 2000, c L-8 states that no person shall commence, carry on or defend an action or proceeding before a Court or judge on another’s behalf unless that person is an active member of the Law Society of Alberta, and the exceptions provided in section 106(2) do not apply to this case.
- Ooommen’s self-appointment as litigation representative gave him the right to direct the litigation or retain counsel, but not to appear in Court.
- An estate therefore requires legal representation to appear in Court.
If you are the Executor of an estate that is either the subject of litigation or needs to pursue litigation, and you need counsel to represent the estate, please give Vogel LLP a call. We have the experience to assist you.