III. Part Two: Key Principles

///III. Part Two: Key Principles
III. Part Two: Key Principles2017-03-03T18:35:03+00:00

A. What is Accessibility?

Accessibility is one broad measure of the functioning and universal application of a justice system.  For the purposes of this paper, accessibility may be defined as access to the dispute resolution process most appropriate in the circumstances, whether that be the court system or another forum. Access to the court system is not the only realm where accessibility is important in a justice system generally, and not the only realm through which accessibility issues should be tackled.  Despite this, one of the chief elements, and primary measures, of accessibility remains an individual’s ability to have their claims determined, and rights protected, by an impartial, independent court.  As a result, being able to access the legal process is a critical element of accessibility.  

Access to dispute resolution has become a major focus of scholarship, legal opinion, and law reform in recent decades,  and litigation, as one mechanism for dispute resolution, is the lens through which accessibility is most often discussed. By many accounts, Canada is facing a court accessibility crisis  as the costs of litigation rise beyond reachable levels for all but the very wealthy, or the very low-income that qualify for legal aid.  This has led to a rise in self-represented parties who may not be able to properly interpret and apply the law or rules of court, making their chances of success limited. Complexity has also contributed to a lack of accessibility, as the increased complexity of the law has meant increasingly complex rules and procedures that, in turn, cause delay, drive up cost, and reduce the lay person’s ability to navigate the court system without professional assistance.  As procedures have become more complex, efforts to create efficiency and widen a population’s ability to access and navigate that procedure have become more common. Examples include small claims courts, simplified or summary civil litigation procedures, and a rise in self-help legal guides and manuals.  All of these have been undertaken with the aim of increasing efficiency and reducing cost and delay. 

However, physical access to the actual sites of dispute resolution remains a barrier for many people. Looking at the court system, many people may not be able to access a courthouse or court registry, or read or understand guides and forms. Furthermore, the time delays associated with pursuing a court claim can mean multiple return visits to the courthouse, which may become prohibitively expensive for some in rural or remote areas not served by their own courthouse.  Increasing accessibility therefore requires a multi-pronged approach, as lack of access is a multi-faceted problem. Because there are a multitude of barriers to probate, discussed in depth in Part Two, Section E of this paper, addressing them may require a different approach for each. As will be discussed, simplifying the mechanisms for applying for probate is only one part of that approach. In Part Five, this paper will suggest a multi-pronged approach to increasing accessibility in the probate application system by addressing issues relating to form and procedure, physical accessibility, legal self-help guides and services, and accessibility services that take place outside the courtroom, such as online or electronic document generators.

 

B. The Key Principle of Proportionality

One of the critical pieces in Ontario’s effort towards increased accessibility of the court system has been the effort to enshrine the principle of proportionality in Ontario court practice and procedure, as well as in newly-formed or reformed legal processes. 

Proportionality describes a balancing between a dispute on the one hand, and the process and procedure for resolving that process on the other. At a preliminary level, proportionality in a broader legal system generally requires providing the appropriate dispute resolution process for each individual circumstance or case. This may imply that the most minimally complex process required, as well as that with the greatest accessibility, be used. For example, disputing a parking ticket should not entail a full two-day trial in an upper-level court. By contrast, a major and heavily disputed class-action lawsuit should not be resolved by desk order or in chambers, and may not be suited for mediation or alternative dispute resolution, depending on the circumstances.

Once the appropriate dispute resolution process is employed, proportionality then implies a balancing between the complexity, monetary value, and legal importance of the issues involved, and the formality, orders, and procedure imposed within that dispute resolution process.   In court cases where small values are at stake, or where issues are not legally complex or novel, proportionality implies that the court may not need to devote enormous resources, expense, or time to them. Alternatively, where cases are highly complex or of legal importance, or the amounts involved very large, the court may need to devote more energy and time to reaching a solution or settlement.  Therefore, it follows that cases where the issues are simple, or the amounts involved small, proportionality encourages a lesser consumption of the court’s time and effort.

Outside the court context, proportionality requires the same balancing to be applied to administrative processes or alternative dispute resolution processes. It encompasses myriad rules of procedure, evidence, and standing, includes the formality of required forms, and can encourage flexibility in both form and substance of orders and decisions made. It extends from the decision-maker to the parties and the administrative clerks, as well as the accessibility and formality of the buildings themselves. Proportionality is the principle behind a legal system’s attempt to devote its resources to areas where they are most needed and where they can be of most use.

The principle of proportionality has been given great weight and credence by courts in Canada, and in Ontario specifically. The Supreme Court of Canada regards proportionality as the source of a court’s power to intervene in proceedings. It allows the court to focus and direct proceedings in the most suitable and efficient direction, having regard to what is truly required to reach a fair and just conclusion.  In Ontario, proportionality was enshrined in the new Rules of Civil Procedure that came into force on January 1, 2010 . Rules 1.04(1) and (1.1) state the following:

  • 1.04(1)    These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.
  • 1.04(1.1)    In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.

By making proportionality the overarching principle in the Rules of Civil Procedure, by placing it at the beginning, Ontario has intended proportionality to be used as an overall tool to interpret the entirety of the Rules and the court’s practice. Proportionality is a principle that should touch every instance of court work in Ontario, as well as be the lens through which procedure, and procedural reform, is viewed.

Many judgments have made reference to the importance of proportionality  and have discussed how proportionality is a foundational principle upon which all court practice and decisions must rest, even where proportionality is not specifically cited in any rule: “[…] applying rules of court that involve discretion ‘includes…an underlying principle of proportionality which means taking account of the appropriateness of the procedure, its cost and impact on the litigation, and its timeliness, given the nature and complexity of the litigation’.”

However, the fundamental importance of proportionality goes beyond litigation. The principle affects the conduct and procedure of all civil matters, whether they are contentious or non-contentious, and whether they are dealt with in a courtroom or out.   Justice Osborne, in his report on civil justice reform in Ontario, concurred that proportionality “has broad application to all civil proceedings.”  Proportionality has therefore been used and applied in many ways: Justice Brown, for example, indicates that he has used it in giving direction on where an application, in a non-contentious estates matter, should be started. 

Proportionality is therefore not a principle that should be limited to the actual courtroom. Justice Brown has indicated that it should reach the court staff as well, and help create what he has called a “culture of common sense”  in balancing the need for correctness and precision in preparation of court forms with the costs and delay incurred when corrections are ordered, as well as the substantial importance of the corrections requested.  He himself has used it to direct exceptions to the standard clerk practice of requiring formal corrections, complete with a completed corrections form, for each change to the probate application forms, where the error was insignificant or of no practical consequence to the substance of the forms.

Therefore, while the principle of proportionality in the Rules of Civil Procedure is not aimed at estates specifically, it has ramifications for how estate work is practiced by lawyers and self-represented individuals, as well as for how estates are administered in Ontario. Proportionality is used to examine the conduct of the parties, as well as their lawyers, in determining costs awards during estate litigation.  It also affects solicitors, in demonstrating the need for them to manage their clients and the plans and strategies they suggest, so that legal service, too, is proportional to the complexity of the issues at play.  And it should affect procedure, so that the procedural requirements of estate administration do not outstrip the complexity, size, or legal importance of the estate itself, which may mean not using a court process at all.

 

C. Why Proportionality Is Important for Accessibility

Proportionality is a critical element of accessibility in the justice system. At a courtroom level, as we have seen, proportionality guides the process to ensure that it is representative of the resources required to adequately resolve an issue. Proportionality also guides the justice system as a whole, ensuring that a variety of processes and forums exist to best respond to the needs of the public. At a high, broad level, proportionality implies that the courtroom may not always be the best forum for resolving a dispute or issue. Court procedure costs the government, the court system, and the parties in both time and money. It costs individuals in terms of effort and stress, in terms of likely requiring legal assistance, and in terms of the difficulty of navigating the procedure.  If accessibility is a key issue in affording the public with fair, just, timely and efficient mechanisms for resolving disputes, proportionality is the tool that allows such mechanisms to properly evolve .

The Supreme Court of Canada, in a recent judgment, made several statements regarding the importance of proportionality and the necessity of it in every aspect of the justice system:

 

  • A fair and just process must permit a judge to find the facts necessary to resolve the dispute and to apply the relevant legal principles to the facts as found. However, that process is illusory unless it is also accessible – proportionate, timely and affordable. The proportionality principle means that the best forum for resolving a dispute is not always that with the most painstaking procedure.
  • […] There is, of course, always some tension between accessibility and the truth-seeking function [of a court proceeding] but, much as one would not expect a jury trial over a contested parking ticket, the procedures used to adjudicate civil disputes must fit the nature of the claim. If the process is disproportionate to the nature of the dispute and the interests involved, then it will not achieve a fair and just result.

Proportionality clearly has a key role to play in increasing accessibility, one of the chief goals of this project. It should therefore remain a principal focus in determining whether a simplified application procedure should be established for small estates.

 

D. Why Accessibility and Proportionality Matter in the Probate Application Procedure

The current probate application regime can lack accessibility where the value and/or complexity of the estate are not balanced with the procedure and mechanisms of the application to obtain the grant of probate.  Ontarians may face several barriers in accessing the current probate application procedure, which are discussed in more depth below. Cost and delay, complexity in the procedure, the outside perception of complexity in the procedure, and physical inaccessibility can also result in a lack of access to the probate application system; where these factors may be combined, the accessibility problem is compounded. Any of these barriers can demonstrate a lack of proportionality, where the value of the estate is not balanced with the barriers faced by the estate representative. Proportionality is therefore an important issue to consider for estates, and for estate representatives. It requires that all court systems and processes – probate included – should be equal to, or balanced with, the complexity of the issues at stake and the sums involved. As a result, proportionality should be considered in any probate application procedure, but especially so in smaller value estates.

Where the size of the estate is small, proportionality implies that it may be appropriate to have a more simplified probate application procedure. If the procedure on application is more complex, time-consuming, expensive, or burdensome for the estate representative than may be warranted by the value of the estate, the probate application system will not be proportional. This is contrary to the recent developments in the Rules of Civil Procedure, and to growing importance of proportionality in the justice system generally. Furthermore, as a key element of accessibility, a probate application system that is not proportional will likely also be inaccessible for the public.  

Developing a proportional probate application system requires a careful assessment of any downsides and risks associated with simplifying the application procedure. These will be considered more fully at the end of Part Two of this paper. Proportionality does not mean that systems should be opened and simplified to the point that they lose their protective purposes altogether. However, a proportional system suggests that the same quantity and level of protection measures may not be necessary in each circumstance.

Value can be used as one measure for determining the threshold for different processes. This has been used in other court processes, as will be seen in Part Three of this paper through an examination of Small Claims Court and Simplified Procedure. With value as the lens, small value estates may not require the same level of procedural protection as large value estates. This is because the level and value of the harm involved if a small value estates is mishandled is smaller, or of lesser quantum, than the level and value of harm if a large value estate is improperly dealt with. As this paper has discussed, the procedural protections in place in the current probate application system are designed to protect the estate from fraud or loss. If the value of the loss is smaller in a small estate, this implies that small value estates may not require as many procedural protections as larger value estates.

Beyond the complexity of the process, proportionality and accessibility imply that the complexity of the individual components of that process should also be reviewed. The simple creation of a simplified process – by reducing, for example, the number of forms required, or reducing the associated fees – does nothing to address the difficulty in each of the forms that remain required. If the forms are overly complex, unintelligible to non-lawyers, or if the information required to understand how to fill them out is not readily accessible and intelligible to the general public;  if it is inefficient, overly time-consuming, or if it creates long delays in the administration of a small estate, then even a simplified process will remain inaccessible for the public. 

Therefore, only some of the measures of increasing accessibility and proportionality can be achieved by simply creating a different stream for resolution of small value estates. Without simplifying the mechanisms involved in the process, parties that meet the lower-value threshold are still likely to require legal assistance, because the components of the simplified process – the forms that are required, the evidentiary rules, and the interpretation of the case law – will remain complex for the average non-lawyer individual.   Therefore, a lack of proportionality and accessibility still exist, as the procedure required is not proportional to the value of the claim, and remains inaccessible for the public.

This suggests that increasing proportionality and accessibility in the probate application procedure will require a multi-pronged approach that addresses more than just the question of whether a simplified procedure should be created. It must also address how to make such a simplified procedure truly functional, effective, and accessible for individuals. To address that question of how, a closer examination of the barriers that people face in accessing the probate application procedure is needed.

 

E. What Barriers Do Ontarians Face in Accessing the Current Probate Application Procedure? (Or, Where are Proportionality and Accessibility Lacking in the Current Probate Application Procedure?)

There is no direct empirical research on barriers that Ontarians face in accessing the probate application system.  Rather, information in this paper was extrapolated from two types of sources: information about barriers individuals face in accessing the court system generally, and information about accessibility issues faced by populations outside Ontario in their respective probate system(s).

The barriers faced in accessing the probate application procedure can generally be aggregated into the following categories: costs and delay, complexity of the system, the perception of complexity in the system, and physical accessibility concerns.

 

1. Costs and Delay

Cost and delay , as well as complexity (addressed below), are the most frequently cited barriers to access to the court system for the average individual.  Costs can include both the administrative cost of filing a probate application or paying the estate administrative tax, the cost of transport to physically access the court registry, as well as the cost of hiring legal assistance where required, or where complexity will not permit effective self-representation.  Delays can often mean increased costs  as, for example, delay in obtaining the COA can mean delays in accessing the estate’s funds, and therefore delay in an estate representative’s ability to be reimbursed for expenses incurred out of the estate. Many estate representatives, especially those of lower income, may not be able to float money to the estate for those administrative tasks, especially if the delay in repayment stretches on too long.

Practically speaking, the application process may be too time-consuming and lengthy for most individuals to tackle without assistance, especially where it may take time away from paid employment. In my practical experience, the process of gathering information about the deceased’s assets alone can involve inventorying a home, cataloguing paperwork and asset statements where they exist, seeking disclosure where they don’t, and advertising publically for creditors and claimants of the estate.  It can be several weeks or more before the deceased’s financial picture is sufficiently complete to put a value on the estate. Tracking down beneficiaries, and providing them all with proper notice of the application, can be also be frustrating and time-consuming. The time necessary to complete these investigative steps, fill out the forms in the required manner, attend to the swearing or commissioning of affidavit evidence, apply at the court registry, and remedy any defects found by the Estates clerk, is typically more than a person has to give to this process. At the same time, however, the proposed estate representative faces pressure from beneficiaries, creditors, and the law  to complete the process in a timely manner.

Therefore, for many individuals, navigating the process can be overwhelming and bewildering. Anecdotally, I asked two practitioners – one in Toronto  and one outside Ottawa  – what they hear about the process from clients who hire them after attempting to file the application for probate themselves. While not a scientific survey by any means, both practitioners had the same response: “no one even tries.” While this could be reflective of their clientele, it is telling that the application process seems to be regarded, by the public and the practitioners, as bewildering and overly time-consuming for individuals without legal training to manage alone.

However, the cost of hiring assistance may be prohibitive for many.  The arguments here are not different from those concerning accessibility reforms that have taken place in other areas of the legal system over the years: the cost of legal services is too expensive for the vast majority of individuals, but the need for legal services remains critical, even necessary.  This is compounded where the value of the estate is small and cannot bear the cost of legal assistance. Furthermore, to date in Ontario there is no Legal Aid or other publically-funded support mechanism for obtaining legal advice about probate matters, as estate matters are not part of the subject areas Legal Aid Ontario funds.  Therefore, for Ontarians requiring legal assistance to complete the probate application process, the only option appears to be private legal services, paid for – where allowable – out of the estate. For lower-income Ontarians or for small-value estates, this can often mean that legal assistance is not an option at all.

 

2. Complexity

Complexity is a highly interrelated issue to cost and delay and one of its primary drivers. The more complex the rules and procedures, the longer it takes for individuals to navigate them, and the more it costs in both time and money.  Complexity may mean that individuals are simply unable to navigate the system themselves, incurring cost; the cost of hiring legal assistance may be a substantive bar to access. Where individuals have no choice but to proceed self-represented, complexity leads to disempowerment, disillusionment, and can lead to procedural unfairness.

In Ontario’s probate application procedure, there are several elements to this complexity. First, there are many forms that may be required in a probate application in Ontario. As of this writing, there are twenty-two separate, fillable forms for an application with a will listed on the Ontario Courts website for estate forms.  Certainly, not all of them apply in every circumstance. However, simply knowing which ones are applicable, required, or may become necessary later on may require some comfort with the procedure.

Second, navigating the order in which forms are required can be challenging.  The application for probate is a multi-stage process that involves following a prescribed set of rules and steps in a particular order, often occurring at a time of emotional stress and upheaval. In my practical experience, it can be a bewildering process even for those with some familiarity with it; for those with no previous exposure to the system, it is easy to be overwhelmed. For example, advertising for creditors, serving notice on the beneficiaries and keeping track of when and how that is done, and calculating the amount of Estate Administration Tax owing are all elements of a successful probate application that may be new to estate representatives. Furthermore, each step is an absolute bar to proceeding: failure to properly complete any one of them produces an absolute inability to proceed with a probate application until it is done. 

Third, the language on the forms can be intimidating for many.  An understanding, for example, of how affidavits work or what evidence is permitted in an affidavit is not something that the public generally has; as affidavit evidence is the principal method of evidence in an application for probate, understanding how to provide all the relevant information can be challenging. Terms like “renunciation”, “service”, “notice”, even “estate trustee” have meanings within the probate process that may be new to Ontarians. The Application form  for an individual applicant with a will asks, on the first page, for the “Address of fixed place of abode” instead of “residential address”. It sometimes refers to the deceased as a testator. It asks a series of questions that, if answered in the affirmative, require further detail in an attached schedule. No information is provided as to why answering yes might require additional information, or what information should be provided. It also asks for information about those who may be entitled to apply, or entitled to a share of the estate, without fully explaining what persons may have an entitlement, or where to find that information. And it asks for information about entitlements to elect under the Family Law Act.

While these questions and terms may be familiar to the estates professional, they are often new and confusing to the public. Therefore, even a person willing and motivated to tackle the application process themselves, who is unhindered by barriers such as illiteracy, lack of computer literacy, lack of physical access to a court registry, or lack of knowledge about what is required, may be stymied by the language of the forms. Simplified, possibly plain-language, forms are a critical element of any successful simplified probate application procedure.

 

3. The Perception of Complexity   

The public’s perception of a system’s complexity is almost as important as actual complexity itself. Individuals who perceive the court system to be imposing, difficult to navigate, or otherwise unfair are less likely to attempt self-representation, and more likely to be disappointed in the process.

This is especially so where racial, ethnic, gender, or other differences are not reflected in the courtroom or court registry experience.  Where the user of the system does not feel that the system reflects them, they are more likely to feel that the system is inaccessible to them. Disadvantaged populations, whether they be considered so because of economic status, social factors such as race, ethnicity, gender, or criminal history, disability or significant physical or mental health issues, are more likely to not only face barriers to the court system, but to feel that barriers will exist before they even attempt access.  Overcoming that perception is an important aspect of increasing accessibility:  even where a system is easy to navigate, if individuals do not perceive it to be so, they will not attempt to utilize it.

 

4. Physical Accessibility   

A lack of accessibility can occur in other, more straightforward ways, such as where even the basic requirement of access to the court registry is lacking. Physical access to the court building remains an issue for many individuals. Many communities lack local access to a court registry, courthouse, or other administrative or legal agencies.  Opening hours may be restrictive for those with daytime employment who may not be able to take time off work, or access a courthouse during a scheduled work break.  It is possible that the inability to file probate forms electronically or by mail may prohibit rural Ontarians, or those without the means to travel, from filing an application for probate.

Physical accessibility issues are compounded for those with physical disabilities, for those who are visually or auditory impaired, or who do not speak English or French in a fluent enough manner to understand and be understood.  Many Ontarians may also face basic accessibility issues such as illiteracy or low or lack of computer literacy, making the procedure and its required forms difficult, or impossible, to locate, read, understand, or properly complete on their own. These issues may impact the deliverability of self-help legal instruction manuals and guides, as internet dissemination is typically one low-cost way of making these widely accessible. Therefore, any simplified process must concern itself with making information available in a wide variety of ways and languages.

One area that must not be forgotten in this project is northern, rural, or remote communities in Ontario. These communities face their own hardships and accessibility issues, which may not be present or as prevalent in southern or less remote communities. Northern and remote communities may often have a higher population of First Nations peoples, where access issues may be compounded by socio-economic and cultural factors.  These can include lower rates of formal education, and higher rates of unemployment (or high rates of only seasonal employment), resulting in lower than average incomes for populations – of all ethnicities – in those communities.  Unemployment rates are higher than average in First Nations communities, as well as in northern, rural and remote communities,  making cost an even more critical element of accessibility. Furthermore, the physical presence of administrative or legal services is often lacking in remote communities. The closest bank branch, government office for ordering death certificates, hospital, courthouse or court registry, or even public computer terminal with reliable internet access, may be several hours drive away.   A lack of familiarity with the civil court system may exacerbate the accessibility issues  in northern, remote, or rural communities. As the intention is to design a simplified probate application procedure that is accessible to all Ontarians, the particular issues of northern, remote, and rural communities should not be forgotten.

It is easy to see why, in the face of this complex task, some estate representatives may be tempted to skip the probate process altogether and simply leave the estate unadministered, or may be otherwise reluctant to take on their duties.  This is especially true where it can be seen ahead of time that the estate itself is likely to be complex, the value of the estate is small, and the reward – in terms of value personally received by the estate representative and/or the beneficiaries – is limited.

The barriers detailed above demonstrate a lack of proportionality between the desired result – a COA for a small value estate– and the process and mechanisms involved in obtaining one. The process is too complex, difficult, and time-consuming to be commensurate with the results and value that may be achieved through probate. As a result of this lack of proportionality, the probate application is fundamentally inaccessible for Ontarians dealing with a small-value estate. A simplified procedure may go a long way to increasing the proportionality and accessibility of the probate application procedure for small value estates.

 

F. Are There Risks to Increased Accessibility?

One challenge of increasing the accessibility of any legal regime is ensuring that the balance does not tip too far away from the protections that a rigourous application procedure can provide. Accessibility and procedural protection can be viewed as existing on opposite ends of a spectrum, with optimal proportionality between the two sitting roughly in the middle of that spectrum. Swing too far towards accessibility in creating a procedure open to everyone, and valuable procedural protections may be lost. Swing too far in the other direction, however, by increasing procedural protections too much, and accessibility to the system may be lost. A system that is proportionally balanced lies somewhere in between those two extremes; where the appropriate balance point will be depends on the issues, needs, and requirements of each particular system that seeks to strike that balance. The law exists to provide protection to the parties and to society as a whole, and our legal procedure has grown based on case law, established best practices, and need.

The protective functions of probate have been covered in the Consultation Paper, and briefly earlier in this paper. While, as we have seen, lack of accessibility and barriers to accessibility continue to exist, any probate application system that proposes to increase accessibility must also ensure that the protective, necessary functions of probate are not lost. That compromise, the proportionality, between accessibility and protection, is at the heart of any future reform.

The probate application procedure acts as the gatekeeper of access to, and control over, the estate. An application procedure cannot address any fraud or loss to the estate that occurs after probate has already been granted. This is because fraud and loss can occur even where the “correct”, or most appropriate, estate representative is appointed. Regardless of value, the administration of estates can be complex enough to cause difficulty or loss even where the estate representative is honest and diligent and has the trust of the beneficiaries. Loss can occur through honest mistake, misunderstanding, or carelessness regardless of the estate representative appointed. It occurs even where estate representatives are properly and adequately informed of their duties and responsibilities. For situations involving an honest estate representative, simplifying the probate application procedure may not increase the risk of loss to the estate. This is because the loss takes place after probate is granted, and is not necessarily caused because of the person appointed as estate representative. Rather, these types of loss are caused by the nature of estate administration itself.

Furthermore, fraud can also occur even where the most appropriate or “correct” estate representative is appointed. Individuals do not always appoint honest and scrupulous estate representatives in their wills; in administrations where there is no will, there is no guarantee that the person with the greatest legal entitlement to administer the estate is an honest or trustworthy individual. The simple act of being appointed the estate representative may not cure the representative of their intentions to act fraudulently once they are appointed. As well, properly appointed estate representatives may develop fraudulent intentions or purposes once they gain control over the estate assets, if circumstances in their own lives change, or where beneficiaries may be thought ill-informed or ill-equipped to monitor or care about the administration of the estate. Once individuals, properly appointed as estate representatives, gain access to sums of money that they alone control, without outside monitoring, it may be easier than we can comfortably admit to feel that no one would notice if they keep some for themselves. These may not truly be risks that can be addressed through any probate application process, because they exist long after the application is completed. 

However, one foreseeable risk that may occur if a simplified probate application procedure is implemented without addressing all of the prongs of increased accessibility is lack of education. The complexity of the current probate application process may have the unintentional function of alerting the applicant to the magnitude of the task being undertaken, and may provide opportunities for the estate representative to become educated on his or her duties. For example, having to attend personally on the court registry to apply may give estate representatives an opportunity to access self-help legal guides that are available in the registry, or even ask the court clerks for further information, or where to find further information. If a simplified application procedure does not make these educational opportunities present, or does not actively seek to increase awareness of the duties and responsibilities involved in administering an estate, a rise in loss to the estate through carelessness or inadvertence – caused by a lack of understanding one’s duties – may be seen. Therefore, a simplified probate application procedure should address this risk by ensuring that adequate, widely-publicized, and widely-available self-help information and guidance is available to those who use the simplified application procedure. This will not prevent honest mistake or carelessness, but will address the role that a simplified procedure may have in creating increased opportunities for that honest mistake or carelessness.

Loss to the estate, or outright fraud, can also occur because a dishonest or untrustworthy estate representative is chosen. This is a bigger risk that a simplified probate application procedure must address. If the mechanism is simplified, will it increase the possibility that a dishonest estate representative is appointed?

Attenuating this risk will involve careful examination of which parts of the process are being simplified, and how. For example, introducing plain-language forms would not likely limit the protective function of the forms; more likely, this would simply make the forms easier for more segments of the population to understand and complete properly. Likewise, introducing greater physical access to the court registry, or more and more widely accessible self-help guides, will not necessarily increase the availability of the system to untrustworthy applicants. The screening process inherent in the probate application would remain. A simplified application procedure simply seeks to address the method, or the mechanism, by which the COA is obtained. It does not necessarily suggest that the functions of the COA, nor the actual law and procedure of administering the estate once the COA has been granted, be changed or simplified. A simplified application procedure simply seeks to make it easier for Ontarians to access that administration. Therefore, the protective functions that the COA serves may not necessarily be challenged or otherwise put at risk by merely simplifying the application procedure.

Risks involved in any of those proposed changes to the procedure would have to be addressed on the level of the individual proposal. For example, this paper will suggest in Part Five that changes be made to the method in which Notice to the beneficiaries of an estate is completed and served, by providing greater information in the Notice and by reducing the amount of paperwork involved for the estate representative in providing that Notice. However, it does not suggest eliminating the Notice altogether. Providing Notice to the beneficiaries may be one protective aspect of the probate application procedure that should not be eliminated in the name of accessibility or proportionality. This is because the protective functions it serves, in informing the beneficiaries of the estate and in encouraging them to monitor and be a check on the estate representative, outweigh the burden on the estate representative in having to serve that Notice. However, a simplified procedure can address the mechanism by which that Notice is given, without eliminating the protective function of the Notice. By eliminating a separate form for Notice, and, for example, streamlining the process by allowing estate representatives to notify the beneficiaries by serving them with a copy of the Application that is already required for probate, accessibility of the probate application is increased through a reduction in the time, delay, and potential efficiency cost to the estate representative. However, the beneficiaries still receive the required Notice in a timely manner, and the protective function is preserved. 

Therefore, in general and depending on the individual proposal, streamlining the process of application may not increase the risk of fraud or mishandling of the estate assets, because the protective functions of probate, and the application process’ role as gatekeeper of estate administration, can be maintained even where the application procedure is simplified.

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