A. A Brief History of Probate
It is important to understand the origins of probate and how it developed in order to properly situate future changes in their historical context. Without this, we are unable to understand what functions probate serves and whether we need to retain, alter, or eliminate them in the search for a procedure that remains robust, but is more easily accessible for Ontarians today.
Rules and laws about probating a deceased’s estate have existed, in some form, since at least the Middle Ages in England. Estates used to be dealt with under the authority of the Church. A special ecclesiastical office was created to administer the affairs of a person who died without a will, and to appoint someone to deal with the estate of persons who died testate. The biggest difference between the functions and powers of an executor (of a testate estate) and an administrator (of an intestate estate), whose role was performed by a church official, was that executors could sue or be sued in the name of the deceased, whereas administrators could not . This suggests, as will be seen later, that being able to represent the deceased in legal disputes may have been, and may remain, a defining function of the office of an estate representative. Over time, the rules surrounding each of these offices merged, such that the administration of an estate, whether testate or intestate, came to have common procedures and regulations. Eventually, an Ecclesiastical Court emerged, with a dedicated Ecclesiastical Judge given special powers relating to the administration of estates. The Court of Probate in England, established in 1857, is the successor of that Ecclesiastical Court and the ancestor of modern-day probate courts.
In Ontario, the development of probate law varied from England in the early years of Upper Canada. A Court of Probate was established in Ontario as early as 1793, with responsibility for the granting of probate or administration to an estate representative. However, Ontario had no courts of equity. Therefore, no equitable doctrines were available for estate matters until the establishment of the Court of Chancery in 1837. Over the years, Ontario’s legislation has been updated to grant estate representatives similar, if not the same, powers in Ontario as exist in England. Ontario’s Surrogate Court, which existed until 1989, was founded on the civil law courts in England.
B. The Policy Rationales Behind Modern Estate Administration
The roles and functions of the modern estate representative have evolved as the complexities of modern estates, and the legislation that governs them, have grown. The policy rationales for probate in its current form have been thoroughly discussed in the LCO’s Consultation Paper for this project and so will only be addressed very briefly here.
The over-arching rationale behind probating estates seems to be safeguarding the estate against fraud and mismanagement. Whether by way of an unsanctioned representative, by way of falsely reporting or mishandling estate assets, or by probating a testamentary document other than the true last will of the deceased, the rationale behind estate administration today is to protect the deceased’s estate from being mishandled, wasted, or otherwise misused. While protection of a beneficiary’s entitlements plays a significant role, the rationales of probate and the functions of the administrator are also designed to ensure that proper procedure in the administration is followed, and that the estate is adequately protected and distributed according to the testator’s wishes (or, failing those, according to his or her legal and moral obligations).
Probate also serves a protective function for the estate representative. Estate representatives can incur much liability in that role. A COA ensures that they are not at risk from decisions or actions taken by other persons. That is, having a COA confirms their appointment as the estate representative and protects their authority to act. It insulates them from claims that they do not have the proper authority to act as that representative, or from liability for actions taken by others who may claim to have that authority.
It also insulates the estate representative from liability for acts undertaken with a COA if that will is later set aside. For example, if an estate representative obtains probate of a will and begins acting as the estate representative, and later a subsequent will is discovered, the estate representative is not liable for the dispositions or acts they undertook while under the authority of the original grant of probate. Without a grant, the estate representative could be made liable for such actions. As such, the grant itself protects them from that liability.
Finally, the grant of probate is required to start the limitation period for certain claims against the estate. The ability to make a dependant’s relief claim, or spousal claim for property, is generally subject to a limitation period, which begins to run from the date of the grant of probate. If an estate representative does not obtain a grant of probate, the ability to make such claims against the estate never expires. This leaves the estate representative, and the estate, at further risk for liability.
As well, the COA serves several practical functions for estate representatives and a protective function for other institutions. First, it is often required before estate representatives can access, or exchange, confidential information about the deceased. Financial institutions, such as banks and credit unions, public corporations, and government agencies may not be willing to disclose confidential or personal information about the deceased, or accept or receive confidential information about the deceased, to or from any person who does not have a COA. The policy rationale behind this is clear: institutions in receipt or custody of personal, confidential information have a legal responsibility to respect privacy rights by not disclosing or sharing that information with the public. Furthermore, the institutions risk liability if the person they release information to, or transfer money or other assets to in the name of the estate, is not actually the authorized estate representative. Therefore, they must be certain that the individual with whom they are sharing that information is, in fact, the proper legal representative of the estate. Otherwise, they themselves risk incurring liability for violating privacy laws.
On a further practical note, a grant of probate is required to deal with real property. Except for circumstances between joint owners, it is not usually possible for an estate representative to take any actions regarding real property, and have those actions registered against title, without having a grant of probate. Typically, Land Titles Offices will require a grant before allowing the estate representative to make any changes to the title. Therefore, in any estate, of any size, that contains real property or an interest in real property, a grant of probate will be required.
Finally, a grant of probate serves the practical function of allowing the estate representative to represent the deceased, and the estate, in court. As we have seen, this historically emerged during the Middle Ages as a function of the executor and it continues to be important today. Estates often end up in front of a court for one reason or another, even in non-contentious situations; formal passing of accounts is one example. The estate representative may require further guidance from the court, or approval or an order from the court regarding any number of estate matters. The estate representative may need to continue court actions begun by the deceased before death. On the other hand, the estate may be sued or may be required to respond to an action. In any circumstance where the estate comes before the court, the estate representative will not be permitted to represent the estate in court or in legal proceedings without a grant of probate.
We can see from this discussion that a COA does perform an important protective and administrative function for the estate, and for the estate representative. Where a simplified application procedure is to be considered, it will be important that any such procedure does not nullify or otherwise hinder these functions. The policy rationales of fraud protection, estate representative protection, and privacy protection are of equal importance to large estates as to small estates, and should not be watered down based solely on dollar value. Rather, a procedure that can simplify access to the probate system, while maintaining the robustness of the protections it engenders, should be the goal.
C. Requirements for the Current Probate Application and How They Compare Across Jurisdictions
The current probate application process in Ontario involves multiple court forms that the applicant must complete. The forms must be substantively complete, to satisfy the judge reviewing the application, and they must be formally complete, to satisfy the Estates clerk, who reviews the form, but not necessarily the substance, of the material provided. The Estates clerk is the first gatekeeper of the probate application process. He or she ensures that the applicant has filled out the forms correctly, has properly commissioned or notarized them, and has not missed any required information before the clerk will accept the application for registration.
While the forms themselves vary across Canada, the substance of the requirements, and the information the forms seek to elicit, are relatively common across the country.
1.Basic Information and Estate Representative’s Oath
All of the common-law jurisdictions require the applicant to cover the basic information such as naming the deceased, the date and place of death, and provide, if applicable, the original last will that is being probated. All jurisdictions also require details about the applicant and their relationship to the deceased.
All require some form of estate representative’s oath. In some jurisdictions this is a separate form on its own, and in others it is a mandatory statement contained in the application form or executor/petitioner affidavit. It is an oath requiring the estate representative to swear they will administer the estate faithfully, follow the law, and notify the court of any changes to the information initially provided in the application.
2. Affidavit of Execution
All jurisdictions require information about the formalities followed when the will was signed, but only the provinces require a formal affidavit from one of the witnesses detailing the procedure followed. The Affidavit of Execution , as required by the Ontario Rules of Civil Procedure Rule 74.04(1)(c), does not need to be sworn at the time of execution of the will, but must be in included in the probate application. If one was not sworn at the time of execution, or at any subsequent time before the death of the testator, the estate representative must attempt to locate one of the witnesses to the execution of the will, and have him or her swear the Affidavit at the time of probate. If no witness can be located, or both have died, the estate representative may be asked to provide “such other evidence of due execution as the court may require”.
In the northern territories, this is not an absolute requirement for an application for probate to be submitted to court.
3. Notice of Application
All jurisdictions, except Manitoba , require the applicant to service notice on the estate beneficiaries of the application. In almost all jurisdictions, notice is required before the application for probate can be completed and accepted for registration. The exception is Nova Scotia, which requires the estate representative to serve notice on the beneficiaries within 30 days after the grant of probate has been given, with proof of service to be filed within 60 days of the date of the grant.
There is a wide variety in the content of these Notices. Some jurisdictions, like the Yukon and Prince Edward Island simply require a notice detailing that the applicant is applying, or in what county. Some, like Ontario require a listing of all the beneficiaries and those entitled to the estate, and all other parties who are receiving notice. Some, like the Yukon , Alberta , and Nova Scotia , require a copy of the will to be included for all beneficiaries, while in other jurisdictions, as in Ontario, only the relevant portion of the will or no will at all need be included.
The Notice of Application serves an important function in alerting beneficiaries to their entitlement