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. This acts as an important check on the power of estate representatives, as beneficiaries often fulfill the function of overseeing how the estate representative is managing the estate. It also ensures that the COA is granted to the person with the correct entitlement to apply, especially in circumstances where there is no will. All jurisdictions that require a notice of application therefore also require the applicant to swear in an affidavit, or otherwise provide proof to the Court, that they have provided the required notice to all the affected beneficiaries and/or entitled parties.
4. Inventory or Valuation of the Estate
All jurisdictions require some calculation of the value of the deceased’s estate, although the level of detail required, and the timing of this disclosure to the court, varies across the country. Value is used as a threshold mechanism for determining eligibility for any simplified application procedure that may exist, for calculating application fees, and for calculating estate administration tax in jurisdictions where such a tax exists. Typically, the value calculation does not include assets passing by way of joint ownership with right of survivorship, or insurance proceeds or other registered plans that have been specifically designated or assigned to a named beneficiary.
In Ontario, this is a simple valuation of the deceased’s assets, less only encumbrances secured by land, making the values of estates appear large even where there may be significant debt or other financial issues that may reduce the actual net value of the estate. This calculation exists in the other provinces as well. However, in the northern territories, the value calculation is net all liabilities, and the court fees associated with the probate application are based on the net value of the estate. This presents a more accurate picture of the estate, as it takes into account all the financial issues at play. Governments in jurisdictions where there is a probate or estate administration tax may find this net calculation undesirable, as it would reduce the amount of tax revenue collected.
Ontario requires a short-form valuation in Form 74.4, while other provinces such as Saskatchewan, the Yukon, and Manitoba require a more complete inventory of the estate and valuation of each individual asset or liability listed. This is a more accurate reflection of the size and complexity of an estate and also more accurately reflects an estate representative’s duty to properly inventory and value the estate. It can also serve as a basis for any future passing of accounts that may be required, and ensures that both the estate representative and any other interested person or party is satisfied with the calculus of the estate value and how the estate representative arrived at such a value.
However, the disadvantage of such an inventory is that it is more complex and more time-consuming for an estate representative to prepare. In my practical experience, it can be a lengthy proposition to ascertain all of a deceased’s assets and liabilities, and obtain valuations of them. If disclosure from financial institutions is required for such valuation to occur, or where the deceased’s estate may require valuations of stock, corporate shares or personal property, or if the estate representative has low financial literacy, the requirement of the valuation and/or inventory can be a bar to accessibility, as it can present too many difficulties for estate representatives to complete without professional assistance.
The required timing of the valuation or inventory can also play a role in accessibility to the probate process. In all jurisdictions except Nova Scotia, the valuation or inventory is required to form part of all probate applications. Therefore, where valuing the assets is complex or time-consuming, as described above, the estate representative is actually prevented from accessing the probate application process unless and until such a valuation is complete. If financial institutions refuse to disclose information about the deceased’s assets held with those institutions without first receiving a COA, it can mean that the estate representative must, essentially, prepare a valuation and file it with the Court twice: once, with estimated values to obtain the COA, and a second time to update the Court with any new information that becomes known after the COA allows financial institutions to disclose the information in their possession.
Where the valuation plays a role in determining the associated fees and taxes, it remains integral to the probate application process. Nova Scotia solves this dilemma by requiring a short-form valuation of the estate on initial application , and then requiring the estate representative to submit a far more detailed inventory of the estate not later than three months after the grant of probate. If the value of the estate is, on inventory, less than the estimated value in the initial application, the Probate Court will issue a refund on the overpaid estate administration taxes. This allows more time for the estate representative to solve financial disclosure issues, although even three months can be a short time-frame for obtaining disclosure from certain financial institutions. It also allows the estate representative to have more flexibility in when they choose to apply for probate, in that they do not necessarily have to wait for complete disclosure from all financial institutions in order to apply. While two required court filings, as opposed to one, can be an additional burden for estate representatives, as we have seen two filings are sometimes needed in practice, regardless. Furthermore, the benefits of requiring the two filings, in terms of accuracy, timing, and ease of information-gathering for the estate representative may outweigh the additional burden of the extra filing. It is my opinion that the two-form system in place in Nova Scotia may be easier for estate representatives to navigate, and alleviates some of the accessibility issues involved in the valuation where financial disclosure is not initially available.
5. Renunciations and/or Consents
Renunciations or consents are not required in every application for probate. However, where they are necessary, failure to obtain them can be a bar to applying. In situations where someone other than the estate representative named in the will, or the estate representative named first in the will, is applying for probate, the earlier person so named must sign a Renunciation, in Ontario called a Renunciation of Right to a Certificate of Appointment of Estate Trustee (or Succeeding Estate Trustee) with a Will. This allows the court to know that all the required people have been notified of the death, demonstrates that the hierarchy of named representatives has been followed, and provides some confirmation that the correct person is applying to be the estate representative; that is, that there is not someone with a greater entitlement to apply.
Consents are required from the beneficiaries of an estate in similar circumstances as those described above, both for probate and on administration where there is no will. Where no estate representative has been named in the will, where the individual applying is not the estate representative named in the will, or where there is no will, the beneficiaries of an estate must give their consent to the person applying for probate as the estate representative. Without the consents of those beneficiaries, the estate representative may not be permitted to apply. Consents serve a similar function to Renunciations, in that they help ensure that the correct person is applying and provide further proof that all of the required individuals have been properly notified of the applying.
6. Security or Bond
Estate representatives are sometimes required to post a bond or other security, sometimes secured by a personal surety or sureties, with the court in an amount equivalent to the value of the estate. This most often applies to estate representatives not named in the will, those applying on administration, or those not resident in the jurisdiction of probate or else outside Canada. This is done as an additional protective mechanism, to protect the estate from a fraudulent applicant, from the value of the estate being absconded with outside the country, or from estate representatives who fail to properly discharge their duties and cause a loss to the estate as a result. All jurisdictions have rules of court or procedure that make mention of the requirement for such security or bond. The practice of requiring it, however, appears to vary both across the country and within individual jurisdictions, and seems situational. A bond or other security is more likely to be required where beneficiaries request or require it, or on intestacy. On the other hand, beneficiaries can also, on consent, waive the requirement for bond, or the court can waive the requirement where it is satisfied that the estate is somehow otherwise protected. It may be more likely to be waived, for example, where the value of the estate is small or where there are no debts, and/or where the estate representative is also the beneficiary. Where required, bond or security can be a significant barrier to the probate system, as they can be difficult and expensive to obtain.
The requirements in the forms discussed above provide a solid foundation to understanding how the probate application process in place in Ontario currently functions. We can now turn to a discussion of accessibility and proportionality generally, before examining how they are balanced in certain judicial processes and procedures.
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