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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Last Friday, February 12, 2021, the Attorney General for Ontario announced changes to the Estates Act that raise the limit of a “small estate” to $150,000.
“Right now, the process to apply to manage an estate in Ontario is the same, whether the estate is worth $10,000 or $10,000,000. The process can be time-consuming and costly, deterring people from claiming smaller estates – and that isn’t right,” said a press release.
The new regulation, introduced in the Smarter and Stronger Justice Act, does not come into effect until April 1, 2021, but will make it easier to file a probate application for small estates and removes the requirement for a security bond in many small estate probate applications.
Among the changes to simplify the probate process for small estates are allowing for the completion and filing of a new simpler application form; removing requirements for certain supporting documents to be filed (for example, a commissioned affidavit of service); and more guidance for applicants on the process to file a probate application for a small estate.
Estate administration tax is still applicable to the portion of the small estate that is larger than $50,000, but these changes to procedure represent a positive step for grieving families who might otherwise leave a small estate unclaimed.
It’s worth noting that banks and other financial institutions often can’t take instructions from an estate trustee unless probate has been granted. By raising the limit for small estates, and simplifying the probate procedure, many estates will be settled sooner and with fewer burdens or costly hurdles for grieving families.
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Ian Hull and Daniel Enright
Re Crowley Estate, 2021 ONSC 582, raises an interesting question surrounding the potential impact of counsel missing a procedural deadline in association with a Notice of Objection to the issuance of a Certificate of Appointment (i.e. probate), and whether missing such a deadline is fatal to the Objector’s ability to generally proceed with a challenge to the Will.
The Notice of Objection process is governed by rule 75.03 of the Rules of Civil Procedure. It generally provides that at any time before the issuance of a Certificate of Appointment any individual who appears to have a financial in the estate may file a “Notice of Objection” to the issuance of a Certificate of Appointment. The impact of filing of the Certificate of Appointment is to in effect to pause the probate process, with the applicant Estate Trustee being required to vacate and/or deal with the Notice of Objection before probate can be issued. The process by which the Notice of Objection is generally dealt with is that upon being advised of the Notice of Objection the Estate Trustee is to serve a “Notice to Objector” upon the Objector in accordance with rule 75.03(4), which then provides the Objector with 20 days from the date on which they are served with the Notice to Objector to serve and file a “Notice of Appearance”. If the Notice of Appearance is served by the deadline, the matter proceeds to a motion for directions in accordance with rule 75.03(6), where the court would be asked to provide directions regarding how the objections that were raised are to be adjudicated before the court. If no “Notice of Appearance” is filed by the deadline the Notice of Objection is automatically vacated, and the probate application may proceed as if no Notice of Objection had been filed.
In Re Crowley Estate, the Objector filed a Notice of Objection to the issuance of probate, and was in turn served with a Notice to Objector by the Applicant. The date on which the Objector was served with the Notice to Objector was November 20, 2020, which would have resulted in a deadline of December 10, 2020 for the Objector to serve the Notice of Appearance. The Notice of Appearance was not served however by the Objector until December 15, 2020. The matter was directed by the Registrar to a Judge, who in turn asked the parties to make written submissions regarding the matter. The Applicant’s lawyer took the position that rule 75.03 was “unforgiving” with respect to its deadlines, and that as the Objector had missed the deadline to serve the Notice of Appearance the court was now required to proceed with the probate application as if no Notice of Objection had been filed. Objector’s counsel advised that the reason for the missed deadline was due to health related concerns surrounding COVID-19, appearing to note in any event that even if the Notice of Objection was vacated the Objector would be proceeding with a challenge to the validity of the Will, noting that the Objector had subsequently commenced a separate Application to address the concerns surrounding the validity of the Will on January 7, 2021.
The court ultimately extended the deadline for the Objector to file the Notice of Appearance under rule 3.02, which allows the court to extend any time prescribed by the rules on such terms as are just. In extending the deadline, Justice Boswell notes that the Objector clearly always intended to pursue the objection, and that there is no clear prejudice to allowing the extension. Perhaps interestingly however, although the comment does not appear to have played a decisive role in the final ruling, Justice Boswell references that even if the Certificate of Appointment was issued the Objector would likely have been at liberty to seek the return the Certificate of Appointment under rule 75.05, appearing to give credence to the Objector’s position that they would have been at liberty to proceed with their challenge to the validity of the Will regardless of the missed deadline for the Notice of Objection.
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In recent months, an Ontario Superior Court of Justice province-wide Notice to the Profession has permitted the filing of applications for a Certificate of Appointment of Estate Trustee with a Will or a Certificate of Appointment of Estate Trustee Without a Will (“probate applications”) by email. Since then, the Rules of Civil Procedure were updated, effective January 1, 2021 to permit for the service of most court materials by email (among other updates).
Most recently, as of January 8, 2021, the Rules of Civil Procedure were further updated to provide for the options of serving notice of probate applications by email, courier, or personal service. Amended sub-rules 74.04(7) and 74.05(5) now read as follows:
Notice under this rule shall be served on all persons, including charities, the Children’s Lawyer and the Public Guardian and Trustee, and, unless the court specifies another method of service, may be served by,
(a) personal service;
(b) e-mail, to the last e-mail address for service provided by the person or, if no such e-mail address has been provided, to the person’s last known e-mail address; or
(c) mail or courier, to the person’s last known address.
Previously, the Rules of Civil Procedure required the Notice of Application in respect of a probate application to be served by regular lettermail.
Forms 74.06 and 74.16 (Affidavits of Service in respect of probate applications) have also now been updated to refer to these new manners of service of the Notice of Application in respect of a probate application. The revised forms are available here.
This further development in the modernization of estates law procedures is welcome and can be expected to better enable lawyers to assist clients in serving and filing probate applications more efficiently while working remotely during the pandemic and beyond.
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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.
In the past, we have written about whether an Estate must first obtain a Certificate of Appointment before issuing a statement of claim.
But what about an Estate that may be entitled to claim a portion of a court-approved settlement?
Over the past year, a number of court-approved class action settlement agreements involving deceased class members appear to have taken into account the cost and complexity of appointing an Estate Trustee.
The settlement agreement approved by the Federal Court in McLean v. Canada is the culmination of litigation concerning tragic, historic events in the lives of those who attended Indian Day Schools. These events include allegations of systemic abuse and mistreatment of children. The “class period” runs from January 1, 1920 until the date of closure or relinquishment of control by Canada of any particular day school or, that date on which the written offer of transfer by Canada was not accepted by the respective First Nation or Indigenous government.
The settlement approval noted that if a class member dies on or after July 31, 2007, their “Estate Executor” is still eligible to be paid the compensation to which the class member would have been entitled.
Similarly, the more recent settlement agreement approved by the Federal Court in Toth v. Canada addresses the claims of veterans who were in receipt of various benefits, including disability pension benefits, and had the disability pension amounts deducted from the other benefits which they received or were entitled to receive. The decision reads:
“Under the proposed settlement, which totals $100 million, every Class Member and the estates of Class Members who have passed away since the Certification Notice was published will receive a payment. Payments will be calculated and made promptly as the majority of Class Members are known and every effort will be made to ensure that all Class Members, or their estates, receive their payment, which will not be subject to income tax.”
If a proceeding has been commenced by an estate before probate has been issued, Rule 9.03 of the Ontario Rules of Civil Procedure offers some relief in stating that the proceeding shall be deemed to have been properly constituted from its commencement.
It is not always necessary for an estate trustee to obtain a Certificate of Appointment in order to administer an estate; however, in certain matters, an estate trustee may be required to obtain probate before being able to represent the estate, whether or not there is a valid Will. The Ontario Superior Court in Carmichael et al. v. Sharpley et al. has set out three circumstances in which probate is required:
- Third parties dealing with the executor may refuse to accept the authority of the Will and demand production of letters probate as authentication of that power…
- Proceedings involving the executor representing the estate as plaintiff or as defendant. It would seem that in such circumstances the court requires probate as an evidentiary matter…
- Where a foreign executor wishes to establish title to estate assets in Ontario he must have his letters probate resealed in Ontario or obtain ancillary grant letters probate. This requires that he first obtain probate in the primary jurisdiction.
Moreover, the Estates Act ensures that estate trustees named in a Certificate of Appointment of Estate Trustee have sole authority in respect of the estate:
“30. 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”
It will be interesting to see if the Courts will continue to take into consideration the necessity and of appointing an Estate Trustee in light of historic claims, and how third parties making efforts to award a portion of the settlement to the Estate will deal with the requirement for probate.
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It appears that the Ontario government is taking action to make it easier and more affordable for executors of modest estates to access the courts.
Where the value of an estate is relatively small, the cost of obtaining a Certificate of Appointment (otherwise known as “probate”) can be perceived as too expensive. As a result, an executor (“estate trustee”) of a small estate often administers the estate without the protection of probate. In some cases, people choose not to administer a small estate at all and abandon the assets altogether.
Foregoing probate may lead to roadblocks when administering an estate. Third parties (like banks and persons buying the deceased’s real or personal property) will often require that the estate trustee obtain a Certificate. Probate reassures these third parties of the estate trustee’s authority and protects third parties from liability, as it verifies that the person they are dealing with is authorized to deal with the estate’s assets.
In the past, we have blogged about the Law Commission of Ontario’s efforts on this issue, including the release of a questionnaire to Ontarians who have administered what they consider small estates.
It now looks like the provincial government is looking to address the issue as well. Attorney General Doug Downey recently introduced the Bill 161, Smarter and Stronger Justice Act. If passed, the Act is intended to improve how court processes are administered to make life easier for Ontarians.
Notably, one of the proposed amendments includes allowing for a simplified procedure to make it less costly to administer estates of a modest value.
Right now, the probate process for all estates in Ontario is the same, no matter the size of the estate.
The Smarter and Stronger Justice Act would make amendments to Ontario’s Estates Act to exempt probate applicants from the requirement to post a bond for small estates in certain cases.
Other proposed changes to the Estates Act include safeguards to protect minors and vulnerable people who have an interest in an estate, and to increase efficiency by allowing local court registrars to perform the required estate court records searches, rather than a central court registrar.
It will be interesting to see if the proposed changes will be passed, and how they may encourage more people to apply for probate and administer an estate of lower value.
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In a decision out of the Supreme Court of British Columbia, a computer file prepared by the deceased was accepted as a will and admitted to probate. Applying the curative provisions of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (“WESA”), which came into force on March 31, 2014, the court was able to conclude that the computer record represented the deceased’s full and final testamentary intentions.
In Hubschi Estate (Re), 2019 BCSC 2040 (CanLII), the deceased died after a short illness. No formal will was found. However, his family was able to locate a Word document on his computer labelled “Budget for 2017”. In that computer file, there was the following statement: “Get a will made out at some point. A 5-way assets split for remaining brother and sisters. Greg and Annette or Trevor as executor.”
By way of family background, the deceased was given up by his birth mother at birth to Children’s Aid. At age 3, the deceased was placed in a foster home with the Stacks. He grew up in the Stack house, and was extremely close to his foster parents and 5 foster siblings. He was treated by the immediate and extended Stack family as a member of the family. Upon his foster mother’s death, her estate was divided into 6 shares, with one share passing to the deceased.
On the other hand, if the document was not found to be a will, the deceased’s estate would pass on an intestacy, and would pass to his birth mother’s sister, with whom the deceased had no contact whatsoever.
The court reviewed a number of decisions applying WESA. The court observed that the purpose of the curative provisions in WESA was to avoid the injustice of a deceased’s testamentary intentions being defeated for no good reason other than strict non-compliance with execution and attestation formalities.
In order to obtain probate of a non-compliant document, the propounder must demonstrate (1) that the testamentary document is authentic, and (2) that the testamentary document contains the full, final and fixed intention of the will-maker. The court found that both of these requirements were met in the Hubschi case.
Previously, I blogged on an Australian case where an unsent text message was admitted to probate under similar legislation. Read about it here. This decision was referred to by the court in Hubschi.
For better or for worse, Ontario legislation does not allow for substantial compliance with the formalities of will execution, and strict compliance is required. While this may lead to greater certainty, it also means that the testamentary intentions of a will-maker are often disregarded where there is not strict compliance with the formal requirements of execution.
Have a great weekend.
In Marsden Estate (Re),  N.B.J. No. 295, upheld on appeal at  N.B.J. No. 304, the deceased was seen by a solicitor and gave instructions for the preparation of a will on September 19, 2016. She died the next day, before the will could be signed.
The estate trustee under the impugned will brought an application to prove the will. She relied on s. 35.1 of New Brunswick’s Wills Act. This section provides:
35.1 Where a court of competent jurisdiction is satisfied that a document or any writing on a document embodies
(a) the testamentary intentions of the deceased, or
(b) the intention of the deceased to revoke, alter or revive a will of the deceased or the testamentary intentions of the deceased embodied in a document other than a will,
the court may, notwithstanding that the document or writing was not executed in compliance with the formal requirements imposed by this Act, order that the document or writing is valid and fully effective as if it had been executed in compliance with the formal requirements imposed by this Act.
The matter was contentious, as two of the testator’s children were essentially excluded from the will. The testator told the solicitor that she had been estranged from them for some time.
The court relied on affidavit evidence, including the affidavit of the drafting solicitor. The court concluded that the unsigned will reflected the testator’s “deliberate, fixed and final expression as to the disposal of her property upon her death”. Further, the court was satisfied that the testator had testamentary capacity, and was not being unduly influenced.
In earlier blogs, we reported on similar applications under similar “substantial compliance” legislation. An Alberta court considered the legislation but declined to apply it where there was an absence of clear and convincing evidence that the deceased failed to execute the will by inadvertence or mistake. An Australian court went as far as admitting an unsent text message to probate.
In Ontario, the doctrine of strict compliance continues to apply. As stated by Nick Esterbauer in his blog of December 11, 2017, it will be interesting to see if Ontario legislation opens the door to substantial compliance in the future. To date, it has not.
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Ante-Mortem Probate, or Pre-Death Probate, is a process of probate which validates the Will of a testator during his or her lifetime and may be particularly useful for testators who fear that their Will may be subject to a challenge following their death.
Various models of Ante-Mortem Probate have been explored in the past by American scholars and include the following proposed models:
- The “Contest Model”, reviewed by Professor Howard Fink, is where each of the beneficiaries are identified, including those that would benefit on an intestacy and the testator essentially becomes the moving party in his or her own suit against all possible beneficiaries of his or her Estate. [Antemortem Probate Revisited: Can an Idea Have a Life After Death? (1976) 37 Ohio St LJ 264]
- The “Conservatorship Model”, explored by Professor John H. Langbein, is where the testator is required to apply to the Court in a manner similar to the “Contest Model”, however, instead of each of the specific beneficiaries being involved, a Guardian Ad Litem (Conservator) represents the interest of all potential beneficiaries, including any unborn or unascertained beneficiaries. [Living Probate: the Conservatorship Model (1980)]
- The “Administrative Model”, set out by Professor Gregory S. Alexander and Albert M. Pearson is neither judicial nor adversarial. There is no requirement of notice to the beneficiaries or in fact “interested parties” as one of the significant concerns with the other models of Ante-Mortem Probate is the confidentiality of the testator. [Alternative Models of Antemortem Probate and Procedural Process Limitations on Succession (1979-1980) 78 Mich L Rev 89]
Only certain American States allow Ante-Mortem Probate, whereas Canada does not have any provinces or territories with a similar arrangement.
Given the number of suits that are commenced following the death of testators across Canada, such an arrangement could be beneficial in that at the very least, a testator who expects that there will be a challenge to his or her Estate plan could take an active part in adjudicating whether his or her Will is indeed, valid.
Considering the complicated familial arrangements that are often present in our society today, perhaps addressing challenges of things like capacity of the testator, undue influence or the presence of suspicious circumstances would make more sense before the testator’s death. This is particularly an issue where a testator’s capacity had been in question for a while and the Will being challenged was executed a decade or more before death.
There are, of course, certain potential negative effects of any Ante-Mortem Probate regime, particularly the possibility that it would encourage litigation that would not otherwise arise, following the death of the testator.
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