Tag: certificate of appointment of estate trustee
As Ian Hull and Daniel Enright of our office blogged last week, as of April 1, 2021, small estates in Ontario will be defined as those worth $150,000.00, instead of the $50,000.00 figure we are all used to.
The Ontario Attorney General, Doug Downey, advised that the process of applying to manage an estate in Ontario was the same, whether it is worth $10,000.00 or $10 million, which often deters people from claiming smaller estates.
As a result of this change, more estates will be able to access a simplified probate process, though the amount of probate fees payable will not change.
Although these changes are welcome, some consider that there are still a number of other issues outstanding, such as:
- Due to real estate values, estates in Toronto could be considered small, whereas that would not be the case in other parts of the province (e.g. a $500,000.00 estate in Toronto could be considered small); and
- The probate process itself could be simplified, as many financial institutions take the position that assets cannot be managed until such time as probate is obtained (which in turn can often cost an estate, as asset values fluctuate).
A recent article discussing the above-noted points can be found here.
It will certainly be interesting to see if the new changes will make a difference, and whether more changes are coming, in light of the concerns expressed by various members of the legal profession.
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On December 7, 2020, the court decision in the Estate of Rezaee was released where a holograph will was later found in the winter coat of a friend and beneficiary. Facts from the decision include that the deceased, Kamran Rezaee was born on March 15, 1962, in Iran. He moved to Canada in 1983. Mr. Rezaee was diagnosed with pancreatic cancer and died on August 10, 2018. He had no family in Canada. His estate was valued at approximately $3.5 million at the time of the application.
On March 20, 2018, Kamran Rezaee attended a dinner party hosted by his friend, Mr. Naftchi to celebrate the Persian New Year. The dinner was attended by four other friends. At some point during the party, Mr. Naftchi testified that Mr. Rezaee wrote and signed in his own handwriting in Farsi a holograph will on a piece of paper. The writing has been translated as follows: “ I, Kamran Rezaee, hereby give all my wealth and property to my close friend Mr. Siamak Naftchi. (signed) Kamran Rezaee, March 20, 2018.” This paper was written and signed in front of all of the dinner guests. Mr. Naftchi testified that Mr. Rezaee wrote this holograph will knowing that he had terminal cancer. Mr. Rezaee had no family living in Canada, and his family in Iran were all deceased. After signing the will, Mr. Rezaee put the will in his pocket and went into Mr. Naftchi’s bedroom to take a nap, which he did every one or two hours due to his health. In November 2018, Mr. Naftchi found the holograph will in one of his own winter jackets. He believes that Mr. Rezaee put the will in the jacket pocket when he went to sleep in the bedroom on March 20, 2018. When Mr. Rezaee died, Mr. Naftchi made the necessary funeral arrangements and paid for the funeral. After obtaining a professional translation of the holograph will, Mr. Naftchi applied to the court for a Certificate of Appointment of an Estate Trustee with a Will.
It is interesting to note the steps that were required to be taken in this case by the Court. On June 18, 2019, the Court issued an endorsement requiring Mr. Naftchi to prove the holograph will “in solemn form in an open court” and that the court will require independent witnesses as to Mr. Rezaee’s handwriting and signature, and that the Public Guardian and Trustee shall be served with the application. The endorsement required Mr. Naftchi to notify Mr. Rezaee’s next of kin and serve them with all court documents. Mr. Naftchi was required to publish in a local newspaper and national newspaper, in Canada and Iran, as the next of kin may have rights. The Public Guardian and Trustee was served with all of the relevant material, and counsel appeared to advise that their office took no position on the relief sought.
Mr. Naftchi published advertisements in Canada and in order to have the notice published in a national newspaper in Iran, Mr. Naftchi retained a lawyer in Iran to file an application there, for issuance of an inheritance restriction certificate for the deceased. They certified that Mr. Rezaee did not have any legal heirs in Iran. The Court in Canada was also provided with: the affidavit of Arian Nida confirming that he was present when the holograph will was written and signed by Mr. Rezaee; the affidavit of Nahid Lebasi confirming that he was well acquainted with the deceased’s handwriting and believes that the holograph will and signature were in the handwriting of the deceased; and Mr. Naftchi was sworn as a witness and provided oral evidence in support of his application. Given that the proceeding was uncontested the Court also followed up with additional questions. It was then ordered that the holograph will of Kamran Rezaee, dated March 20, 2018, was a valid holograph will and was probated.
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Avoiding Common Errors in an Application for a Certificate of Appointment of Estate Trustee With a Will
Commencing an Application for a Certificate of Appointment of Estate Trustee With a Will is the first step in having a court formally declare a will as valid. This process was formerly known in Ontario as “probate”.
While these Certificates are not mandatory, some banks and financial institutions may require an Estate Trustee to obtain a Certificate in order to deal with estate assets. Aside from this, a Certificate is usually required in instances where:
- the estate is large;
- the assets cannot be easily transferred; and
- real property forms part of the estate.
Avoiding Common Errors
Although the Application for a Certificate of Appointment of Estate Trustee With a Will is fairly short in length and seems straightforward, it is rare for these Applications to be approved upon their first submission. In the majority of cases, they are returned for corrections.
In order to assist applicants in completing their forms, the Ministry of the Attorney General released the following guidelines that highlight some common errors in these Applications:
- An Affidavit of Execution of Will or Codicil (Formed 74.8) signed by one of the witnesses to the will must be filed together with the original will, which will be marked as “Exhibit A” to the affidavit.
- If there is no affidavit of execution and both witnesses cannot be found or have died, an affidavit attesting to the signature of the testator must be filed. Ideally, the affidavit should be made by someone who is familiar with the testator’s signature.
- On Form 74.4 “Application for a Certificate of Appointment of Estate Trustee With a Will (Individual Applicant)”, the question under section 5 regarding an election of the Family Law Act should only be answered if the applicant is the spouse of the deceased.
- If the will states that someone other than the applicant has the right to apply for the Certificate of Appointment of Estate Trustee (or succeeding estate trustee), that person must give up their right by completing Form 74.11 “Renunciation of Right to a Certificate of Appointment of Estate Trustee (or Succeeding Estate Trustee) With a Will.”
- This must be indicated on the Application (Form 74.4) and on Form 74.13 “Certificate of Appointment of Estate Trustee With a Will.”
4. If the applicant is not named as Estate Trustee in the will, they must obtain consent to their appointment from the beneficiaries who make up a majority share of the assets of the estate.
5. If an Estate Trustee who is named in the will or codicil is not the applicant due to death or renunciation, this should be indicated on the Application (Form 74.4) and on Form 74.13.
- If a will and/or codicil refers to a memorandum, the memorandum must be filed with the court.
- If the memorandum cannot be found, an affidavit indicating this must be filed, along with the efforts made to locate it.
- All beneficiaries named in the will must be served with Form 74.7 “Notice of an Application for a Certificate of Appointment of Estate Trustee With a Will.”
- If a beneficiary has not been served, an explanation must be given in Form 74.6 “Affidavit of Service of Notice” as to why.
- Form 74.7 must be marked as “Exhibit A” to Form 74.6 “Affidavit of Service of Notice.”
- The original will should be marked as “Exhibit A” to the affidavit in the Application (Form 74.4).
- If Form 74.8 “Affidavit of Execution of Will or Codicil” is not submitted, an affidavit must be filed with the Application that explains this and sets out the efforts made to find the people who witnessed the testator sign their will.
- On Form 74.13 “Certificate of Appointment of Estate Trustee With a Will”, the address of the court should be typed under the Registrar’s signature line.
- The date should not be filled in on this Form;
- A plain, unmarked copy of the will should be filed; and
- The court will impress a seal upon the Certificate of Appointment and the copy of the will attached.
To read the full article from the Ministry of the Attorney General about how to avoid common errors in applying for a Certificate of Appointment of Estate Trustee, visit this link.
Thanks for reading!
Suzana Popovic-Montag and Celine Dookie
Were you recently appointed as Estate Trustee and needed to obtain a Certificate of Appointment of Estate Trustee (otherwise known as “probate”)? In that case, you need to know that an Estate Information Return must be filed with the Ministry of Finance within 90 days of the date of the appointment, setting out the assets in the Estate and their corresponding date of death values.
Typically when an Application for Certificate of Appointment is filed with the Court, a trustee may not have access to every asset of the Estate such that that the value of the Estate may not necessarily be accurate.
As a result, when an Estate Information Return is filed following the Certificate of Appointment being granted, all of the assets of the Estate must be listed. Depending on the values of the assets as confirmed by the trustee following the Certificate of Appointment being granted, a refund may be issued in the event that Estate Administration Tax was overpaid or additional tax may be payable in the event that the value of the assets as listed on the Application is lower than what was listed on the Estate Information Return.
The Estate Information Return may be audited by the Ministry of Finance for up to four years after it is filed. As such, it is important to retain all relevant records in the event of such an eventuality. Another important consideration is that the Ministry of Finance will not typically provide confirmation of receipt of an Estate Information Return so it is prudent to send it via means that would provide you with confirmation of delivery such as fax.
Finally, if a trustee finds out any additional information regarding the value of the assets of the Estate that has any bearing on the Estate Administration Tax payable, an amended Estate Information Return must be filed within 30 days of the new information being uncovered.
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The commencement of litigation requires a Plaintiff to have standing to sue; and Probate (or a Certificate of Appointment of Estate Trustee With (or Without) a Will) is required if an Estate Trustee wishes to obtain Judgment against a Defendant.
While an action can technically be commenced without probate (see the remedial provisions of Rule 9 of the Rules of Civil Procedure discussed below), the Court will not grant Judgment in favour of an Estate unless the Estate Trustee has been granted authority to administer the Estate.
The rationale for this requirement is nicely explained by Professor Oosterhoof (in Oosterhoof on Wills and Succession Chapter 2):
The grant of probate is only evidence (really, the only evidence) which a court will recognize that a person has authority to administer the assets of the deceased. For this reason, while an executor can do many acts of office before obtaining a grant he or she cannot obtain judgment before that time, although he or she can commence an action. Similarly, no action can be maintained against a named executor unless he or she has obtained a grant of probate.
This position was supported by the Ontario Court of Appeal in Re Eurig Estate (appealed on other grounds to the Supreme Court of Canada) where Morden A.C.J.O. stated:
Further, apart from the general legal duty to administer the estate promptly and efficiently, which almost invariably requires the executor to obtain probate, the law imposes the requirement that an executor must have probate to prove his or her title when an estate matter is before the court. Letters probate are the only evidence of an executor’s title which a court will receive (see Hull and Hull, Macdonnell, Sheard and Hull, Probate Practice, 4th ed. (1996) at pp.185 and 188), even in a case where the defendant is willing to concede that the executor has title without evidence of probate: Re Crowhurst Park; Sims-Hilditch v. Simmons,  1 W.L.R. 583 (Ch), (at p. 792)
Moreover, the Estates Act ensures the estate trustees named in a Certificate of Appointment of Estate Trustee have sole authority in respect of the estate:
- After a grant of administration, no person, other than the administrator or executor, has power to sue or prosecute any action or otherwise act as executor of the deceased as to the property comprised in or affected by such grant of administration until such administration has been recalled or revoked.
In the event that the Certificate of Appointment of Estate Trustee is obtained subsequent to the commencement of the Action, the Rules of Civil Procedure, contain a remedial provision:
9.03 (1) Where a proceeding is commenced by or against a person as executor or administrator before a grant of probate or administration has been made and the person subsequently receives a grant of probate or administration, the proceeding shall be deemed to have been properly constituted from its commencement.
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After considerable research and public consultation, The Law Commission of Ontario (“LCO”) released its final report for the Simplified Procedures for Small Estates Project on November 19, 2015.
The LCO’s mandate for this project was to recommend law reform measures to enhance and improve the estate administration procedure such that its current benefits would be more accessible to small estates with a gross value of up to $50,000.
After considering a range of alternatives to the court-based supervision that should be used in the small estates process in Ontario, the LCO ultimately concluded that a court-supervised model would be most appropriate in keeping with the protective function of the regular probate system. In this regard, it is recommended that amendments to Rule 74 of the Rules of Civil Procedure and the Estates Act should be amended to provide for a simplified small estate procedure which will result in the issuance of a Small Estates Certificate that will have the same legal effect as a Certificate of Appointment of Estate Trustee.
The only difference between a court-issued Small Estates Certificate and a Certificate of Appointment of Estate Trustee is that estate trustees pursuant to a Small Estate Certificate will only have the authority to deal with the estate assets listed in the application.
To determine whether an estate qualifies for access to the small estate process, the LCO recommends that the value of the estate be calculated in accordance with section 32(1) of the Estate Act and should include all assets belonging to the deceased at the time of death, including those discovered after the issuance of the Small Estate Certificate.
The LCO recommends that a formal application process which mirrors the current probate process should be adopted for small estates with the exception of some of the evidentiary requirements. For example, an applicant under the small estate process would not be required to file proof of the validity of a will and their legal entitlement to administer the estate. Instead, an application would simply be required to make a declaration to this effect. The only evidence required would include:
- a copy of the death certificate;
- a copy of the will if there is one; and
- a form declaring that the application was sent to the beneficiaries, including the Ontario Public Guardian and Trustee and/or the Office of the Children’s Lawyer,
Applicants under the small estate process would also be required to send a copy of the application and an explanatory form to all known persons with an entitlement to a share of the estate, including the OPGT and/or the OCL. This must be done at least 30 days before filing the application. However, payment of security would not be a requirement of the application process.
The LCO also makes recommendations to the Ontario Government and the Ministry of the Attorney General with respect to amendments to the Estate Administration Tax Act and the development of an on-line filing system and paper filing procedures. Other recommendations include information guides specifically for unrepresented applicants with step-by-step instructions and public awareness campaigns to educate the public regarding the importance of making a will and appointing an estate trustee.
To find out more about the LCO’s recommendations and to read the full report visit http://www.lco-cdo.org/en/small-estates-final-report
Thank you for reading and have a great weekend!
The term "probate" recurs throughout estates practice as a noun, verb and adjective. The most common context refers to the process of getting a court to provide some sort of official certification or recognition that a testatmentary instrument is the Last Will of a deceased. In Ontario, the probate process results in the issuance of a Certificate of Appointment of Estate Trustee With a Will (or Without a Will).
Under the modern Rules of Civil Procedure, the procedure resulting in the issuance of a Certificate of Appointment rarely requires that a judge review the application, or even the alleged Will. By Rule 74.14, an application need be referred to a Judge only where, in the opinion of the Registrar, the application and the accompanying materials are not complete or contain information on which the Registrar has a doubt. This results in an efficient administrative process, but any interested party can challenge the validity of a such a probated Will, and the fact that a Will has been "probated" has no probative value when it comes to proving the Will in solemn form, as it is called.
A judgment upholding the validity of a Will does not necessarily "probate" that Will. Parties to the proceeding may not want a Certificate of Appointment to be issued, and so they will not request that a Certificate of Appointment be issued as part of the Judgment. This might be the case where the Will is a "corporate" or "secondary" will, and is restricted to assets that can pass outside of probate (often to avoid estates administration tax).
Have a great weekend,
Christopher M.B. Graham – Click here for more information on Chris Graham.
Listen to Probate Issues and Requirements
One of the complaints I often hear from estate administration counsel is that applications they submit for a Certificate of Appointment of Estate Trustee are rarely approved on the first try and are at times returned more than once with different corrections.
This issue was the subject of a paper recently presented by Malcolm S. Archibald at the Six-Minute Estates Lawyer 2007. A few of the suggestions he makes to ensure your application is accepted included the following:
- have total uniformity of names and addresses in the materials with the way they appear in the Will;
- identify when someone is known by another name or incorrectly referred to in the Will;
- serve a notice of application on all beneficiaries entitled to a share in the estate;
- do not send a notice of application to a beneficiary in care of someone else;
- set out in detail the reasons why you have been unable to serve any beneficiary with the notice of application;
- if you have undervalued the value of the estate or missed an asset, file a solicitor’s letter and affidavit explaining the true value of the estate and the reason for the change and provide payment for the increased tax payable; and
- if you are submitting a holograph Will, file an affidavit attesting to the handwriting and signature as well (preferably not sworn by a beneficiary).*
If you are unable to resolve an issue with respect to the application with the court office, Mr. Archibald recommends writing a letter setting out your position addressed to the Registrar to be given to a judge for consideration.
I understand that efforts are being made to standardize the estate court office’s approach to such applications. So, if you have ever completed an application correctly and had it returned to you, there is a chance that you will encounter this problem less frequently as greater consistency in the approach at the court office is established.
Enjoy the rest of the week.
* For additional guidelines, you can obtain a copy of the Estates Procedures Manual from the Ministry of the Attorney General.