In the new year, there will be three new forms for estate trustees and administrators to use under section 9 of the Estates Administration Act (the “EAA”). The new forms can already be found on the Ontario Court Forms website under the heading Estates Administration Act Forms.
The first form is a Caution. An estate trustee or administrator can file a caution at the land registry office if there are concerns that real property in the deceased’s estate may need to be sold. If a caution is not filed, there is a risk that the rights and interests related to that land may devolve automatically after three years pursuant to the EAA.
Subsection 9(1) of the EAA provides that if real property is not disposed of, conveyed, divided or distributed by an estate’s personal representative within three years of the death of the deceased, that property will vest in the persons beneficially entitled to it, either under the will or upon intestacy, regardless of whether or not probate or letters of administration have been granted.
It warrants noting, however, that whether or not real property vests pursuant to section 9 may depend on the terms of the deceased’s will, if a will was left behind. In DiMichele v DiMichele, 2014 ONCA 261, the Ontario Court of Appeal held that section 9 of the EAA only applies to the extent that it does not conflict with the provisions of a will, and therefore may not limit the scope of an estate trustee’s power to sell property. The Court confirmed that “[t]he intention of the deceased, as expressed in his or her will, is always paramount”.
In addition to the new form for cautions, there are also new forms for a Certificate of Withdrawal and an Affidavit of Witness, which are discussed in subsections 9(4) and 9(5) of the EAA. A certificate of withdrawal and a confirming affidavit must be registered with the land registry office if a personal representative wishes to withdraw a registered caution before it expires. If a caution is not withdrawn, it will expire after three years unless it is renewed.
Along with the introduction of these new forms, subtle amendments to section 9 of the EAA will also come into force on January 1, 2022. The amendments were first assented to on November 14, 2017, as part of the Cutting Unnecessary Red Tape Act, 2017 (see Schedule 11, sections 8-9).
It appears that 2022 is going to be a landmark year for estate administrations in Ontario. Along with the new EAA forms, new Estate Forms under Rules 74 and 75 of the Rules of Civil Procedure will also be coming into force, effective January 1, 2022.
Thanks for reading, and have a great day!
To learn more about the application of section 9 of the EAA, see:
- Life Tenants, and the Vesting of Real Property
- Dependant Support Claims, Limitation Periods and the Vesting of Real Property
To learn more about the new Estate Forms under Rules 74 and 75 coming into effect January 1, 2022, see: