A Certificate of Appointment as Estate Trustee without a Will can be issued under s. 29(1) of the Estates Act to the person to whom the deceased was married immediately before death; the person with whom the deceased was living in a conjugal relationship outside of marriage immediately before death; the next of kin of the deceased, or a combination of the above.
Often, there are competing claims for a Certificate of Appointment by different individuals who may be entitled the Certificate.
The question of how this issue of competing claims is properly brought before the Court was considered in Gardiner v. Whetung, 2009 CanLII 70510 (Ont. S.C.), a decision of Quinn J.
There, a purported spouse applied for a Certificate of Appointment. The deceased’s mother objected by filing a Notice of Objection. The mother also brought an application under Rule 14.05 of the Rules of Civil Procedure, seeking an Order appointing her as Estate Trustee.
The purported spouse brought a motion to dismiss the mother’s application. She argued that the mother did not have a “financial interest” in the estate, and thus, could not object to the application brought by the purported spouse.
Quinn J. held that while the mother did not, in fact, have a financial interest in the estate, and thus could not file a notice of objection, she could properly bring an application to be appointed estate trustee. S. 29 of the Estates Act sets out who can apply, and a financial interest in the estate is not a prerequisite to such an application.
Quinn J. considered the legislation and the Rules and found that the Rules do not clearly set out how competing claims should be brought or decided. An Order for Assistance is not appropriate, as, there too, a financial interest in the estate is a prerequisite.
Quinn J. concluded that the mother could have submitted her own application for a Certificate. However, this would simply mean that the registrar would have two applications, and the matter would have to be brought before a judge.
The better approach, Quinn J. observed, was to issue a Notice of Application for opinion, advice and directions of the court under Rule 14.05(a).
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In Re Estate of Michael O’Flynn, 2009 CanLII 57149 (ON S.C.), the Honourable Justice Brown encouraged the development of a culture of common sense in processing applications for certificates of appointment of estate trustee. This approach is further illustrated in the recent decision in Re Estate of Daniel O’Donnell, 2010.
In Re Estate of Daniel O’Donnell, the date of Mr. O’Donnell’s death was mistakenly listed as May 1, 2009 (not May 2) on the application for a certificate of appointment and resulting certificate. This mistake did not stop the administration of the estate. Mr. O’Donnell’s Will named Mr. Wilson as the sole estate trustee and sole beneficiary, and Mr. Wilson distributed virtually all of the estate assets to himself. He died a short time later, in July 2009. The administration of Mr. O’Donnell’s estate was yet to be completed, but the alternate estate trustee in Mr. O’Donnell’s Will had renounced her right to act.
Accordingly, the named estate trustee for Mr. Wilson’s estate, Ms. Thomas, applied for a certificate of appointment as succeeding estate trustee with a will for Mr. O’Donnell’s estate. The application materials filed by Mr. Wilson’s estate trustee listed May 2, 2009 as Mr. O’Donnell’s date of death. The original error in the date of death went unnoticed for some time.
When the mistake in the date of Mr. O’Donnell’s death was finally identified, the Toronto Estates Office took the position that the applicant should bring an ex parte motion to correct the error made in the original certificate before the second certificate could be issued. Ms. Thomas argued, among other things, that she should not have to bear the cost of correcting a mistake she had not made and that the cost of preparing such a motion was out of proportion to what was at stake in the succeeding application (the succeeding application was only needed to complete tax filings and distribute the remaining assets valued at only $1,000.00.)
Justice Brown’s solution was as follows. If the Estates Office identifies a discrepancy in the date of death between the original certificate and the application for a succeeding certificate, it should request an affidavit from the applicant that confirms that a mistake was made on the original certificate and attests to the correct date of death. Upon receiving such an affidavit, the Estates Registrar can then process the application for a succeeding certificate using the corrected date of death, and make any required changes to the original certificate and Ontario’s central registry which records information regarding estates.
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Bianca V. La Neve – Click here to learn more about Bianca La Neve.
Primary and secondary wills are common enough situations for estates practitioners: one will for probate and the other for assets that can pass outside probate, to minimize estates administration taxes. But what about situations with multiple wills requiring probate?
According to the October 8, 2008 endorsement of Mr. Justice Brown (court file no. 01-2725-08, no link available yet), where a testator makes 2 wills, each covering different assets, and each naming different executors, a local estates registrar can issue separate Certificates of Appointment of Estate Trustees to different executors limited to the assets referred to in each Will.
The endorsement closes with 2 "reminders" to applicants in multiple wills situations (I won’t paraphrase):…
I have learned that only a small percentage of applications for certificate of appointment of an estate trustee, filed in Toronto, are approved without being sent back for correction.
Some common problems associated with these types of applications are, incorrect or inconsistent references to the deceased’s name, problems concerning the mailing of the application to beneficiaries who have an interest in the subject estate, incorrect calculations of estate administration tax and in cases involving holographic wills, a missing affidavit attesting to the handwriting of the deceased. Needless to mention, most of these errors can be avoided if the application is carefully reviewed.
But what happens if the deceased’s name is spelled incorrectly in the Will? If there is an error in the deceased’s name in the Will, the heading on all of the documents should reflect the correct name, followed by a statement stating "incorrectly referred to in the Will as (insert the name is it appears in the Will). It is also important to remember, that the names of beneficiaries shown in the notice of application must be identical to the way in which their names appear in the Will.
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Listen to becoming an executor after death.
This week on Hull on Estates, Ian Hull and Suzana Popovic-Montag, discuss becoming an executor after death and three issues that must be addressed immediately.
Listen to Administration of the Assets of the Estate
This week on Hull on Estates and Succession Planning, Ian and Suzana discuss things to consider when administrating the assets of an estate and point out burdens of being and executor.
Listen to Funeral Considerations
This week on Hull on Estate and Succession Planning, Ian and Suzana discuss the considerations and responsibilities of estate trustees at the time of a funeral.