Amendments to the Succession Law Reform Act (the “SLRA“) came into force in 2022. As the new provisions of the Act do not have retroactive effect, their full implications are only now being tested.
A question that may arise in practice is whether the new provisions of the SLRA affect not just a right to a primary grant of probate in Ontario, but also an ancillary grant or a resealing. While the application form for a primary grant requires the applicant to specifically answer to separation queries, the application form for an ancillary grant or a resealing makes no such queries.
Therefore, at first glance it appears that, given the application forms, the SLRA only intends to revoke a right to a primary grant of probate. If ancillary and resealing applications do not require the applicant to provide separation details, how is the Court to assess whether the SLRA revokes the applicant’s right to an ancillary grant or resealing? Does this mean that the Court is to defer to the primary grant issued by a foreign court, without exercising any discretion?
First, let’s refresh our memory on the new SLRA provisions—if a surviving spouse separated from their deceased spouse on or after January 1, 2022, the SLRA revokes their appointment as estate trustee in the deceased spouse’s will. Spouses are deemed to be separated if, at the deceased’s passing, they were living separate and apart as a result of the breakdown of their marriage and they fall into one or more of the following four categories:
- 1. They lived separate and apart as a result of the breakdown of their marriage for a period of three years, and the separation period immediately preceded the death;
- 2. They entered into an agreement that is a valid separation agreement under Part IV of the Family Law Act;
- 3. A court made an order with respect to their rights and obligations in the settlement of their affairs arising from the breakdown of their marriage; or
- 4. A family arbitration award was made under the Arbitration Act, 1991 with respect to their rights and obligations in the settlement of their affairs arising from the breakdown of their marriage.
These events must have taken place on or after January 1, 2022, in order for the spouses to be deemed separated. For example, the spouses must have begun to live separate and apart on or after January 1, 2022. Likewise, a separation agreement must have been signed on or after January 1, 2022.
While the practice of the courts is to defer to grants made by a court of the domicile, the courts retain some discretion.
For ancillary grants, Ontario courts have jurisdiction to issue an ancillary grant where it is shown that the executor is, by the law of the domicile of the deceased, entitled to receive the property. However, it has always been recognized that the jurisdiction of the court to issue an ancillary grant is discretionary. Probate Practice provides that an ancillary grant would thus not be issued if the foreign executor was disqualified from acting by the law of Ontario. Therefore, persons whose right to appointment has been revoked by the SLRA would not appear to qualify for an ancillary grant.
With respect to a resealing, the authority of the Ontario courts is in section 52 of the Estates Act, which does not confine the power to reseal to grants made by a court of the domicile of the deceased. However, if the words “under the direction of the judge” in section 52 can be interpreted as allowing discretion to the Ontario courts in resealing, then whether a resealing may be granted to a person who is not competent to obtain a grant in Ontario will likely depend on the court issuing the primary grant. Probate Practice provides that if the court of the domicile issues a primary grant, the primary grant could likely be resealed, whereas if the primary grant was not issued by the court of the domicile, then the Ontario courts may likely refuse resealing. Therefore, persons whose right to appointment has been revoked by the SLRA, may be in a better position to obtain a primary grant from the court of the domicile before applying for a resealing in Ontario.
Key Takeaways
Therefore, even in circumstances where a person merely requires a resealing or ancillary appointment in Ontario, it appears that practitioners should still be prepared to make the appropriate inquiries on separation in order to ascertain whether the foreign executor is also entitled to appointment in Ontario.
Where it appears that the SLRA has revoked the applicant’s right to appointment in a will, it seems that for now it is advisable for the resealing or ancillary application to touch on this issue.
Thank you for reading.