The reduced hours and filing capabilities of the court during the COVID-19 pandemic have raised some interesting questions surrounding the filing of probate applications. Although the court’s direction to file court materials by mail is likely of no concern for a majority of matters, as a probate application could contain the original executed copy of a Will as well as a potentially significant bank draft for any estate administration tax, you would likely be rightly hesitant to place such documents in the mail under the current circumstances for fear that they may be lost.
The potentially good news for those needing to file probate applications with the Toronto court is that it is our current understanding that the Toronto court is allowing probate applications to be filed in person at the court office daily between the hours of 10:00 am and 12:00 noon, and again from 2:00 pm to 4:00 pm. Although these filing capabilities and times are of course subject to change, at least for the time being those in Toronto appear to be able to file probate applications in person without having to concern themselves with the possibility of the application being lost in the mail. Those needing to file probate applications in jurisdictions outside of Toronto should check to see if they too are making an exception to allow probate applications to be filed in person and not by mail.
In the event that it does not appear that it will be possible to file the probate application in person, such that the probate application would likely need to be filed by mail, the individual wishing to file the probate application should seriously consider whether there is an urgent need to file the probate application or whether it could wait until the courts have fully re-opened. If you are advising a client in such a situation, you should clearly explain what would happen in the event that the original Will was lost, and that an application to prove a copy of the lost will would be necessary (together with the added time and expense). Although the presumption that the lost will was destroyed by the testator with an intention of revoking it could likely easily be overcome by the fact that the possession of the Will could be traced to after the testator’s death, there would still be added time and expense of needing to bring the lost will application.
In the event that the client does still decide to proceed with filing the probate application by mail, one way to potentially reduce some of the risk may be to have any probate fees paid by trust cheque from the law firm and not by bank draft. Although in the event that the application materials were lost in the mail the lost will application would likely still be required, at least the concern associated with losing an original bank draft (and potentially the associated funds) is lessened as a trust cheque should more easily be cancelled. Multiple notarial copies of the original Will should also likely be made prior to placing it in the mail.
Thank you for reading and stay safe and healthy.
Canada is currently in the midst of a postal strike. Although the strike is currently “rotating” in nature, with different communities being subject to the strike on different days, it is possible that the strike could become country wide should negotiations remain unsuccessful. Although concern may immediately turn to the potential impact of a full strike upon online holiday shopping, a full national strike could also have an impact upon the legal world in relation to the service of documents.
Canada Post remains a vital service to the legal community, amongst other things remaining one of the official means of service upon a lawyer of record pursuant to rule 16.05 of the Rules of Civil Procedure. Although there are alternate service mechanisms available to serve documents upon a lawyer of record should the strike become national, such as potentially using a courier, there are certain documents which the Rules of Civil Procedure provide may only be served by mail.
Rule 74.18(3) of the Rules of Civil Procedure contemplates that an Application to Pass Accounts is to be served by regular lettermail, providing:
“The applicant shall serve the notice of application and a copy of a draft of the judgment sought on each person who has a contingent or vested interest in the estate by regular lettermail.” [emphasis added]
Although such a rule typically assists the Applicant in serving the Application to Pass Accounts in a streamlined and cost effective manner, as otherwise personal service of the Application to Pass Accounts would be required pursuant to rule 16.01 as an “originating process”, the rule does not contemplate what is to occur in the circumstance that service by regular lettermail is not possible (i.e. in a full work stoppage). In such circumstances, how can the Applicant ensure that the Application to Pass Accounts is properly served as required by the Rules of Civil Procedure?
From a common sense standpoint there are likely alternatives readily available to serve the Application materials other than by regular lettermail, including potentially by courier or by personal service. From a strict reading of rule 74.18(3) however, service of the Application to Pass Accounts by any means other than “regular lettermail” is not proper service, such that it is possible that a beneficiary may argue that they have not been properly served should you serve them by any other means. Should this occur, it is possible that an Order validating service and/or substituting service for alternative means under rule 16.04 may be required.
Thankfully at present the strike is only “rotating” in nature, such that we can continue to mail out documents such as Applications to Pass Accounts to be served in accordance with the Rules of Civil Procedure (subject to any potential daily interruptions should your community be striking on a particular day). Should circumstances change however, and there is a full work stoppage, it is possible Orders may have to be sought validating and/or substituting service for service in a manner other than by regular lettermail for those items such as Applications to Pass Accounts which the Rules provide may only be served by mail.
Thank you for reading.