Tag: limited grant
On today’s podcast, Stuart Clark and Rebecca Rauws discuss the limited grant under s. 29(3) of the Estates Act as a tool to consider when probate may be delayed, but there is an urgent need to deal with an estate asset. For more information, please check out Stuart’s recent blog on this topic here.
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An unfortunate reality with the administration of estates is that probate can take a long time to be issued. It is not uncommon for it to take six to eight months, if not longer, after the application is filed before the Certificate of Appointment is issued. As many institutions such as banks require a Certificate of Appointment before they will grant access to estate funds, and the Estate Trustee is generally unable to deal with any real estate owned by the estate until the Certificate of Appointment has been issued, this delay can often result in complications with the initial administration of the estate. These complications can be particularly acute when there is an urgent need for the Estate Trustee to complete a particular task which requires probate, such as the potential urgent need to deal with certain real estate or assets on behalf of the estate.
In the past when faced with the urgent need for probate a common solution would be to bring a Motion seeking an order directing the Registrar to expedite the issuance of the Certificate of Appointment. As anyone who has recently attended an event at which an estates court judge has spoken can attest however this option generally appears no longer to be available, as the message being conveyed is the court is generally not prepared to order the Registrar to expedite the process absent extraordinary circumstances. Such a reluctance appears in part based on the court not wanting to place the Registrar in a position of being in contempt of court if they are unable to comply with the expedition order, as well as administrative issues the expedition orders were causing at the estate office.
The general inability to expedite the issuance of probate absent limited circumstances has raised a number of questions about what, if anything, an applicant Estate Trustee can do if faced with the urgent need for probate and their situation does not meet one of the limited circumstances the court has indicated they will consider expediting probate. Would the applicant Estate Trustee simply have to wait however long the probate application takes in the normal course, or are there other options absent expediting probate that may be available to them?
One potential solution is the use of a “limited grant” under section 29(3) of the Estates Act as a stop-gap, with the applicant Estate Trustee being provided with the authority to complete the particular urgent task under the limited grant until such a time as probate is issued at which time the limited grant would expire. As the limited grant should not require the active involvement of the Registrar, with the individual’s authority to complete the task being derived from the order itself, many of the concerns raised in relation to ordering the Registrar to expedite probate do not appear present with the limited grant.
The limited grant is technically a separate appointment from Estate Trustee, such that the order providing for the limited grant should likely contemplate items such as what is to happen to any assets subject to the limited grant upon the limited grant expiring (i.e. are they to be returned to the Estate Trustee), as well as whether an accounting for the limited grant and/or any compensation to the appointee is payable now or if it is to be deferred to any accounting for the main estate.
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We all know how long an Estate Trustee typically has to wait for a Certificate of Appointment of Estate Trustee With or Without a Will, if filed in Toronto. Sometimes a Certificate of Appointment is not granted for six to eight months from the filing date.
The Court recently expressed its frustration with the frequency of motions being commenced by Estate Trustees seeking to expedite the granting of the Certificate of Appointment. The option of obtaining the Certificate of Appointment on a more urgent basis appears to no longer be available as a result. Apparently, it was not unusual for Estate Trustees to seek to expedite the process when real property of an Estate needed to be sold. The Court does not always agree that the sale of real property cannot wait until the Certificate of Appointment is granted.
Despite the Court’s stance on expediting the granting of Certificates of Appointment, there are special circumstances that would arguably warrant the Court’s intervention. What if an Estate Trustee’s authority is required to manage a certain asset of an Estate such that, if it is not obtained within a reasonable amount of time, the Estate could suffer significant expense?
An option that is available which should be carefully considered (particularly given the Court’s position on expediting the process overall) is seeking a limited grant from the Court for a particular purpose. Historically, this was known as a grant ad colligenda bona, and was limited to particular purposes as well as limited until such time as a general grant could be made (see Charles H. Widdifield, Surrogate Court Practice and Procedure, 2nd ed. (Toronto: Carswell, 1930) at 190).
Today, where the conditions for an appointment of an Estate Trustee During Litigation are not met, and there is a delay in the appointment of an Estate Trustee, a limited grant for the purpose of gathering in and protecting the assets may be sought by way of a motion or application for directions under Rule 75.06 of the Rules of Civil Procedure (see Ian M. Hull & Suzana Popovic-Montag, Macdonell, Sheard and Hull on Probate Practice, 5th ed. (Toronto: Carswell, 2016) at 384).
This option should be carefully considered where the circumstances are truly special such that the Court’s intervention is required on an urgent basis and the Estate Trustee cannot wait until the Certificate of Appointment is granted.
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