There are a number of limited grants that are important to consider for succession planning purposes. We have previously blogged about a type of limited grant, a durante minore aetate, which grants administration duties to a guardian if a minor is named as executor of an estate. Other types of limited grants include administration durante absentia and grants to attorneys, both of which deal with administrators located outside of the jurisdiction.
A grant of administration durante absentia is a grant necessary where the person entitled to a certificate of appointment is absent from the jurisdiction. The grant will be effective until the entitled individual returns to the jurisdiction. Today, these grants are made by passing over the absent individual and by appointing a person who the court sees as appropriate in the circumstances. The grant may last for longer than the named individual’s absence from jurisdiction.
A grant of administration durante absentia is usually made by the next of kin pursuant to section 13 of the Estates Act which states:
- Where application is made for letters of administration by a person not entitled to the same as next of kin of the deceased, an order shall be made requiring the next of kin, or others having or pretending interest in the property of the deceased, resident in Ontario, to show cause why the administration should not be granted to the person applying therefor; and if neither the next of kin nor any person of the kindred of the deceased resides in Ontario, a copy of the order shall be served or published in the manner prescribed by the rules of court.
This provision is further governed by Section 14 of the Estates Act which states:
- (1) If the next of kin, usually residing in Ontario and regularly entitled to administer, is absent from Ontario, the court having jurisdiction may grant a temporary administration to the applicant, or to such other person as the court thinks fit, for a limited time, or subject to be revoked upon the return of such next of kin to Ontario
(2) The administrator so appointed shall give such security as the court may direct, and has all the rights and powers of a general administrator, and is subject to the immediate control of the court. R.S.O. 1990, c. E.21, s. 14 (2).
Furthermore, a grant to an attorney may be made if the person solely entitled to a grant as estate trustee with or without a will is out of the jurisdiction. Pursuant to section 5 of the Estates Act, letters of administration, except by resealing, can be granted only to a resident of Ontario. However, the case of Armstrong Estate, Re, 2010 ONSC 2275, held that if a non-resident is applying for a Certificate of Appointment of Estate Trustee with a Will, and the applicant has the consent of a majority of the persons resident in Ontario who are otherwise entitled to apply, and where security is in place, the grant may be issued to the non-resident.
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The Substitute Decisions Act directs that, when a person who does not reside in Ontario is appointed as a guardian of property, that person must provide security, as approved by the Court, for the value of the property to be administered. However, the Court also has discretion to waive the requirement that security be provided by a non-resident guardian of property. Under what circumstances the Court will exercise its discretion to waive the requirement to post security when appointing a non-resident guardian of property is unclear within the legislation and little guidance is provided by the sparse case law that deals with this issue.
In a paper presented by Dermot Moore of the Office of the Public Guardian and Trustee (the “PGT“) at this year’s Six-Minute Estates Lawyer, Mr. Moore outlined the policy of the PGT on recommending security when a non-resident guardian of property is being appointed. The PGT will typically recommend that security be required in the following circumstances:
- If the proposed guardian is not a parent or spouse of the incapable person and the value of property is greater than $100,000.00;
- If the proposed guardian is a parent or spouse, the incapable person does not own real property, and the value of the property is greater than $250,000.00; and
- If the proposed guardian is a parent or spouse, the incapable person owns real property, and the value of the property is greater than $500,000.00.
It may be worth noting that in a jurisdiction such as Toronto, where property values are so high, a guardianship application by a non-resident of Ontario in respect of the average person who own real property will result in a recommendation by the PGT that security be posted.
In his paper, Mr. Moore notes that it is not infrequent for the Court to dispense with the requirement that security be provided if there is some argument in support of waiving the requirement. One of the few decisions in which the issue of security in the appointment of non-resident guardians has been considered is Salzman v. Salzman, 2011 ONSC 3555, 2011 CarswellOnt 15786. In this case, a resident of Quebec was appointed as guardian of property for his mother and was not required to post security upon his appointment. In dispensing with the requirement to post security, Justice Hoy made note of the proposed guardian’s close relationship with his incapable mother, his historical assistance in managing her affairs, and the consent of his siblings, the only other beneficiaries of his mother’s estate, to the non-resident’s appointment and the dispensing of the requirement to post security.
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