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Legal Ease
Legal Ease, Lawyer
Category: Canada Law
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Experience:  Lawyer
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I am the plaintiff in a notice of civil claim against an

Customer Question

I am the plaintiff in a notice of civil claim against an executor of a will in a cross border estate. I am concerned that the executor is going to dissipate the assets of the estate, and transfer assets out of Canada, before my claim is heard, and that it will be difficult to ever recover the assets. I cannot afford to pay a lawyer, unless it was on a contingency fee basis. I have read that in some instances it is possible to seek a Mareva Injunction. If I cannot afford a lawyer, then is there any chance that the court would grant such an injunction? I am worried that I need to act immediately, as she has just sold valuable real property in the estate and I believe will remove the assets from British Columbia before my claim against her is determined.
Submitted: 9 months ago.
Category: Canada Law
Customer: replied 9 months ago.
I am self represented in the notice of civil claim. I realize that not having a lawyer is a major disadvantage, though I have no more money to pay a lawyer. The executor, who is represented by counsel, responded to the claim, though just after doing she sold the real property.
Expert:  Legal Ease replied 9 months ago.

A mareva injunction will indeed freeze the assets of the estate.

There is no legal obligation on you to retain a lawyer. You do have the right to self represent even when applying for this extraordinary remedy. However, what you should know is that it is a complicated remedy and it is very hard to convince the court to award this injunction and, on top of that, if your application for the junction fails you will personally be stuck with a good part of the executor's legal fees.

Does that helpas a starting point?

Customer: replied 9 months ago.
Thanks for your answer. I am doing some research on this subject, and I can see what you are saying how it could be difficult to convince the court to grant such an injunction.There is another thing I was thinking, after having asked the question about a mareva injunction. My concerns are that the executor has sold real property in the estate that they may not have been entitled to sell, if my claim against the executor is proven. The executor has sold the land to a relative, who apparently intends to give the property to her children. If it were determined by the court that the executor did not have a right to have sold the real property, is possible that the sale could be set aside and the property returned to the estate? The executor and the relative who purchased the property signed a contract for sale before my claim against the executor was filed, though the transfer of the property did not take place until after the claim had been filed and all parties were aware of the claim at that time. The property means a great deal to me and one of my sisters, and we did not want it to be sold.
Customer: replied 9 months ago.
Thanks for your answer. I am doing some research on this subject, and I can see what you are saying how it could be difficult to convince the court to grant such an injunction.There is another thing I was thinking, after having asked the question about a mareva injunction. My concerns are that the executor has sold real property in the estate that they may not have been entitled to sell, if my claim against the executor is proven. The executor has sold the land to a relative, who apparently intends to give the property to her children. If it were determined by the court that the executor did not have a right to have sold the real property, is possible that the sale could be set aside and the property returned to the estate? The executor and the relative who purchased the property signed a contract for sale before my claim against the executor was filed, though the transfer of the property did not take place until after the claim had been filed and all parties were aware of the claim at that time. Yet they proceeded with the sale in spite of the claim.
Customer: replied 9 months ago.
sorry for the repeated question. I did not realize it had sent the first time.
Expert:  Legal Ease replied 9 months ago.

As the sale is not at arm's length the sale could be set aside.

But what you can do now is send a letter to that relative warning them that the land may be subject of lawsuit and that they may end up losing it and they may back down.

As well, even without a mareva injunction you may be able to get a certificate of pending litigation to register on title to this property. You would need to bring a motion for this but it will be much easier than doing the injunction though then you are only dealing with this one property.

Customer: replied 9 months ago.
I was thinking the same thing about sending a letter. I was thinking to enclose a copy of my notice of civil claim with the letter as well. The title to the land was transferred to the purchaser (a relative) last week, so the transfer has occurred, though I from what I have been told the final recipients of the land are intended to be her children. So another transfer could still take place.I did try to register a certificate of pending litigation, but the land is held as "residue" of an estate under a will. The Land Title Office would not register the certificate of pending litigation on the basis that no party had a beneficial interest in the land.
Customer: replied 9 months ago.
was held as residue. The executor has sold the land and is proceeding to administer the estate despite that there is a lawsuit that could result in the will being set aside.
Expert:  Legal Ease replied 9 months ago.

You can try to get and get accourt order for the certificate pending litigation.

Customer: replied 9 months ago.
If the registrar of land titles refused to register my certificate of pending litigation, based on the fact that I had no beneficial interest in the land while the estate was being administered by the executor, I was acting under the assumption that the court would do the same.
Customer: replied 9 months ago.
I only found two days ago that the land was transferred last week to the relative, who is an aunt. I am so worried that because this is our aunt that the executor, who is my sister, has sold the land to, that it will be difficult to get it back. I am in disbelief that they proceeded with the sale, even after my claim was filed. A certificate of pending litigation, if I could even have one registered by a court order, after the registrar of land titles refused to do so, would only affect future transfers of the land. Is there anything else I can do at this time, other than to send my aunt and her children, who are our cousins, a letter? The land has a house that my father build on it, and all of his personal belongings are still on the land.
Expert:  Legal Ease replied 9 months ago.

What I am saying is that I know the land Registry office would not register the certificate of pending litigation but what I'm stating is that if you can get a court order that would be good enough.

In terms of the transfer that already happened you will need a court order to deal with that of course.

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