Small estates – estates valued at $150,000 or less – have been recognized in Ontario for five years now, after being introduced through the Smarter and Stronger Justice Act, 2020. While the procedure for applying for a small estate certificate, governed by rule 74.1.03 of the Rules of Civil Procedure, is similar to the procedure for applying for a certificate of appointment of estate trustee, they are not identical. One significant way that the processes differ is when a bond is required. As per section 6 and subsection 36(3) of the Estates Act, a bond is only required when applying for a small estate certificate under three circumstances – when a beneficiary of the estate is a minor, when a beneficiary is mentally incapable within the meaning of the Substitute Decisions Act, 1992, or if the applicant resides outside of Ontario.
Over the last five years, unnecessary applications to dispense with the bond requirement for small estates have been submitted to the Superior Court of Justice repeatedly, notwithstanding the relatively limited circumstances under which a bond is required for such estates. In In the Estate of David Cole Conly, deceased,2026 ONSC 3020, the latest case to deal with such an unnecessary application, Justice Leach expressly called on lawyers practicing in this area to familiarize themselves with the law and stop submitting unnecessary applications.
In this case, the deceased’s parents applied for a small estate certificate in order to administer their son’s intestate estate. Pursuant to Part II of the Succession Law Reform Act, they were the estate’s only beneficiaries. They also submitted a “basket application,” seeking an order dispensing with the bond requirement, even though they resided in Ontario, the estate had no minor beneficiaries and neither of them were mentally incapable.
Justice Leach declined to grant the requested order, since a bond was not required and “the court should not make unnecessary orders,” and also indicated that unnecessary applications for bond dispensation orders have become a relatively common occurrence in the context of small estates. In addition to Conly Estate, similar requests have been dismissed in In the Estate of Sylvia Judy Nizzero, deceased, 2023 ONSC 117; In the Estate of Endre Gyorgy Kocsis, deceased, 2023 ONSC 627; In the Estate of Robin Bernard Dauphinais, deceased, 2023 ONSC 628, and In the Estate of Troy Deveron Haggitt, 2023 ONSC 4411.
Recognizing that it has been almost six years since the Smarter and Stronger Justice Act, 2020 was enacted, changing the law governing the bond requirements for estates, Justice Leach issued a call to action, ruling that it is well past time for unnecessary requests for orders dispensing with nonexistent bond requirements “to stop.”
Justice Leach’s reasons in Conly Estate are noteworthy because they explain why practitioners should stop bringing unnecessary bond dispensation applications. For represented applicants, such applications can result in additional legal expense, in addition to delaying the processing of estate applications. In turn, those delays can postpone the administration of estates and the distribution of estate assets.
The impact of such unnecessary applications also extends beyond the applicants. Justice Leach explained that court staff do not have the discretion to disregard these requests and that estate clerks must direct them to a judge, who in turn must address the unnecessary applications. As a result, such applications to dispense with administration bonds end up consuming judicial and administrative resources that could be better devoted to matters that genuinely require the court’s attention.
In an era of increasingly strained court resources, the message is clear: the impact of bringing unnecessary applications detrimentally affects not only the applicant, but also the justice system itself.
A Practical Takeaway
Justice Leach’s decision in Conly Estate serves as a useful reminder for estate trustees and practitioners alike. Before seeking an order dispensing with an administration bond, it is worth reviewing the Estates Act – or consulting the Estates Court Staff Procedure Manual – to confirm whether a bond is required. Unless security must actually be posted, there is no need to ask the court to dispense with the bond requirement. In fact, doing so only increases costs, delays administration, and consumes limited court resources.
In the words of Justice Leach, “estate trustee applicants, their counsel, court staff and the judiciary … should no longer be devoting time, expense and resources to requests for court orders dispensing with a bond requirement that no longer exists.” In other words, it is time for the estates bar in Ontario to update their practice in this area.
Thank you for reading, and have a great day!