Evidence of the Defendant

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Evidence of the Defendant

  • At the first directions hearing, the defendant (administrator or executor) will be ordered to serve affidavits in accordance with Practice Note.[1]
  • The affidavit of the administrator/executor must include the following matters:
    • A copy of the deceased’s Will and the probate or letters of administration, if granted (if a copy is not already annexed to the plaintiff’s affidavit);
    • A description of the nature and value of the assets and liabilities of the deceased at the date of death. (A copy of the inventory of property attached to the probate or letters of administration will suffice so far as the property of the deceased at the date of death unless other assets have been discovered);
    • What is, or is likely to be, the nature, and an estimate of the value, of:
      • The assets and liabilities of the deceased at the date of swearing the affidavit;
      • Any property of the deceased that has been distributed at any time after the death of the deceased and the date of the distribution of that property;
      • The gross distributable estate (omitting the costs of the proceedings).
    • A description of the nature, and an estimate of the value of any property which, in the administrator’s opinion, is, or may be, the subject of any prescribed transaction or relevant property transaction;
    • The name and address of every person who, in the administrator’s opinion, is holding property as trustee, or otherwise which is, or may be, the subject of any prescribed transaction or relevant property transaction;
    • Any testamentary and other expenses, or other liabilities of the estate that have been paid out of the estate of the deceased, including the amount, if any, paid for, or on account of, the administrator’s costs of the proceedings;
    • Whether any commission is to be sought by the administrator, and if so, an estimate of the amount proposed to be sought;
    • The names and address of every person who, in the administrator’s opinion, is, or who may be:
      • An eligible person;
      • An eligible person under a legal incapacity;
      • A person beneficially entitled to the distributable estate;
      • A person holding property as trustee or otherwise.
    • In addition, the administrator/executor must also provide:
      • The administrator/executor must also provide an affidavit of service of a notice of claim on various persons in accordance with Schedule J of the Supreme Court Rules and paragraph 9.2 of the Practice Note.
      • An affidavit in reply to the plaintiff’s affidavit in chief, which may contain facts contradicting facts contained in the plaintiff’s affidavit or other matters the administrator/executor will rely upon;
      • An affidavit, if necessary on information and belief, which identifies each beneficiary who is raising, or is likely to raise, his, her, or its, financial, material, or other, circumstances as a competing claimant, and each beneficiary who is not raising, or is not likely to raise, those circumstances;
      • An affidavit setting out an estimate of the administrator’s costs and disbursements, calculated on the indemnity basis, up to, and including, the completion of mediation.

[1] Practice Note SC Eq 7; para 9.