I. Introduction

I. Introduction2017-03-03T18:35:03+00:00

Ontario currently has one common procedural system through which estate representatives apply for a grant of probate, which in Ontario is called a Certificate of Appointment of Estate Trustee (hereinafter a “COA”), regardless of the value or complexity of the deceased’s estate. This paper seeks to contribute to the Law Commission of Ontario (the “LCO”)’s examination of whether Ontario should adopt a simplified probate application procedure for estates under a certain value. The goal of such a simplified probate procedure would be to increase the average Ontarian’s ability to access the probate application procedure. This paper specifically seeks to understand whether the desire for increased accessibility can be balanced with the procedural protections that the current probate application procedure provides.

This paper will begin with a brief overview of the history of the probate process, and looks at the requirements of the current probate application procedure in Ontario, so as to better understand any potential suggestions for change. It will also discuss which of the procedural requirements are common in other jurisdictions in Canada, in order to understand if there are any that are unique to Ontario. In Part Two, this paper will discuss the foundational principles of accessibility and proportionality that have guided the research. It will discuss why accessibility is important for a probate application procedure. Using accessibility research generally, as well as the literature surrounding probate procedure reform in other jurisdictions, it will extrapolate regarding some of the barriers Ontarians currently face in accessing the probate application procedure. It will then draw conclusions about how, in general, a simplified probate application procedure may increase accessibility. Finally, Part Two will address whether or not there are any risks associated with increasing accessibility through a simplified probate application procedure.

Part Three will look more closely at some examples of processes and procedures that have already undertaken the balancing between accessibility and procedural protection, in order to look for lessons and suggestions for a simplified probate application procedure. Specifically, this paper will look at Small Claims Court, Ontario’s Simplified Procedure for civil litigation in Rule 76 of the Rules of Civil Procedure, the Social Justice Tribunals Ontario generally, as well as the Landlord and Tenant Board specifically, the Ontario Land Titles Registry and the Electronic Land Registration System (E-LRS), and finally, the Children’s Law Reform Act. Part Three will draw some conclusions, from these examples, regarding ways forward in designing a simplified probate application procedure in Ontario.

In Part Four, this paper will compare the requirements in the current probate application procedure with the requirements involved in becoming a grantor’s attorney under a Continuing Power of Attorney for Property, in order to contrast the risks involved in probate with the risks involved in granting an attorney the ability to manage the entirety of one’s property. It will suggest that the financial risks, and risk for fraud, inherent in having an attorney may be greater than the risks associated with the administration of one’s estate, yet the procedural rigour required for the estate representative to obtain access and control of the estate is disproportionate to this increased risk.

Finally, in Part Five, this paper will make some specific recommendations for simplification of the probate application procedure in Ontario. First, this paper will suggest that Ontario simplify the probate application forms, and streamline the process of creating and serving those forms on the necessary parties. Specifically, this paper will suggest that a simplified probate application could include an altered procedure for the Notice of Application that is served on beneficiaries, by eliminating the separate Notice form in Ontario and instead serving beneficiaries with a copy of the Application for a Certificate of Appointment. While this suggestion is aimed at a simplified probate application procedure, it could, in theory, be useful for all probate applications, regardless of value. Secondly, and more specifically for this project, this paper will suggest that Ontario develop an online, electronic probate application registry or, at a minimum, an online, electronic probate application document generator for small value estates, similar to the model currently in use in New York State.

 

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