As Estate and Trust practitioners, it is not uncommon that we are consulted by those who have undertaken the considerable task of applying for probate of an estate. This task can be arduous and technical, and so it is no surprise that we are frequently contacted by frustrated applicants who have been informed that despite their best efforts, a problem was identified by the registrar, requiring additional information or remediation. 

Given the intense time demands currently faced by Court staff across Ontario, errors or conflicting information can result in lengthy delays for estate trustees and beneficiaries. 

One situation that was previously rare, but is becoming increasingly common in more populous judicial regions such as Toronto, is that where the registrar rejects an Application for a Certificate of Estate Trustee Without a Will – because another Will is mistakenly identified as having been deposited for the deceased individual.  

For estate trustees who have diligently completed their Application with a high degree of confidence that no Will had been deposited in the Superior Court of Justice, it is vexing to receive a Form 74O Registrar’s Notice noting that, pursuant to subsection 16(d) of the Estates Act, R.S.O. 1990, c. E.21 a Certificate cannot be issued on the basis that: 

a Will or codicil was deposited in the Superior Court of Justice and your application indicates that the deceased died without a Will. 

In many cases, the cause of such a Notice is simply that the deceased individual did, in fact, file a Will with the Court without the knowledge of the person applying for a Certificate. In these circumstances, the Applicant should review the Will deposited with the Court, and amend their Application accordingly to reflect the Will’s existence. My colleague Zahra Attir has recently written about how individuals may access and review Wills deposited with the Court, pursuant to subrule 74.02(5) of the Rules of Civil Procedure.  

Incorrectly Identified Wills 

In populous judicial regions such as Toronto, it is a reality that some testators with Wills deposited with the Court will have similar (or identical) legal names to other testators – this can result in the situation where a deceased person with no Will is identified as having deposited one with the Court.  

In circumstances where it is at all possible that the Will was made by the Deceased, the registrar will provide a Form 74O Notice to the probate applicant, requiring that the applicant file an affidavit outlining why the Will on deposit is not that of their Deceased person. This affidavit will include relevant supporting information, such as an incorrect birthday, or references to beneficiaries in the deposited Will (such as a spouse or children) do not match those of the deceased individual they apply on behalf of. These materials are used during the judicial review of the application in order to determine whether the Will identified was, in fact, that of another person. 

This process is an important safeguard to ensure that Wills on deposit with the Court are not lost, missed or otherwise bypassed, protecting the testamentary plans of testators across Ontario. We thank all of the court staff who perform this essential role. 

Thanks for reading! 

Doug Higgins