Limited Grants Continued and Alterations in Grants
Last week we blogged on limited grants in the event that the executor is located out of the jurisdiction. There are two other types of limited grants to consider: grants where an original will or codicil is unavailable and administration durante animi vitio. Furthermore, it is important to consider making alterations in grants in the case of an error.
A limited grant may be necessary where an original testamentary document is unavailable or if there will be a delay in the production of certain codicils. The grant may be limited until the time when the original or the codicils are produced. This grant will allow an individual to act as administrator of the estate until such documents can be located. If the original will is with somebody abroad who is unwilling to produce it, it is possible to grant probate pending the receipt of the original. In a case of urgency, it is possible that a copy of an original will may be admitted, limited until the original arrives. If a copy is admitted, an individual must apply to the court by an order for directions under Rule 75.06 of the Rules of Civil Procedure.
Another type of limited grant is administration durante animi vitio, roughly translated as “administration for the use and benefit of a person under a disability”. If a person entitled to a grant of administration was of unsound mind at the time of the deceased’s death, or became of unsound mind after receiving the grant, administration for his or her use and benefit would be granted to someone else until the individual returned to sound mind. If a sole executor or administrator becomes incapacitated through mental or physical illness, the grant can be revoked and administration can be granted to his or her guardian.
If a certificate of appointment has been issued, but there is a defect in the document, it is important to alter or amend the document. If an error is a bona fide mistake and is not of significant importance to require the revocation of the grant, the amendments may be made based on satisfactory evidence. These types of amendments include minor details such as the name of the executor, or the date of death. This will result in the execution of a new bond. When an error is discovered, an affidavit should be filed confirming the mistake on the original and attesting to the correction, and the registrar will then make any changes required. If property is discovered after the grant of probate or administration and was not originally included in the application, the executor or administrator must deliver a true statement of the property verified by oath to the registrar in Ontario. This may result in the individual having to pay an increased surety to account for the extra value of property.
Thank you for reading,