Changing the Rules

July 16, 2015 Joshua Eisen Estate & Trust, Wills Tags: , 0 Comments

A new regulation, O. Reg. 193/15, was filed on July 9, 2015 under the Courts of Justice Act.  The new regulation affects the Rules of Civil Procedure and the existing estates rules in particular (74, 75, and 75.1).  The regulation also introduces a new Rule 75.2 Court-Ordered Estates Mediation.  There are some changes that come into effect sooner, but most of the important changes that affect estates matters come into effect on January 1, 2016.

One of the major changes pertains to the rules for mediation in estates matters.  At present, mediation in estates matters is mandatory in Toronto, Ottawa, and Essex County, unless waived by a judge, under the terms of Rule 75.1.  In other parts of the province, mediation is not required, but remains a useful and often successful process in resolving estate disputes.  The new regulation sets out that the Court has power to direct the parties to attend mediation in an Order Giving Directions under Rule 75.06 or on a contested Application to Pass Accounts under Rule 74.18, even where mediation is not mandatory under Rule 75.1.  Court-ordered mediation in estates matters will be governed by a brand new Rule 75.2.

Also being introduced is Rule 74.14.1.  This Rule allows a person to make a written request to the registrar for authentication of a Certificate of Appointment that has been issued.  The registrar will issue a “certificate of grant” for use within Canada and an “exemplification certificate” signed by a judge if the authentication is intended to be used outside of Canada.

Rule 74.14.2 is brand new as well.  This rule addresses difficulties associated with confirming the authority of an estate trustee where there has been a change due to the death of an estate trustee named in the will (whether the sole surviving executor or not) or due to removal of an estate trustee by the Court.  It can also be used when there has been no change of estate trustees.  By making a written request to the registrar and upon filing the necessary documents, a court status certificate can be obtained which confirms the authority of the estate trustees.

The regulation makes a series of other changes to the Rules of Civil Procedure as well, including procedural changes on Applications to Pass Accounts and a number of new forms when applying for a Certificate of Appointment.  Some of the new forms are already in effect.  The bulk of the changes will be effective in the new year.

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