After considering the practical legal factors affecting small estates and probate, including those a new procedure would need to take into account, in this chapter we view the possibility of a separate small estates procedure and the impact on its design through the lens of two fundamental principles: that of accessibility to probate, and that of the desirability of legal protections for those affected by estates administration.
A. The Principle of Proportionality in Balancing Accessibility and Legal Protection
Usually, notions of access and justice are tightly wound together. Improved access should result in more justice. However, a key challenge in law reform is the ever-shifting relationship between these concepts. When we “unpack” the legal processes involved in a particular procedure and assess them against the importance of achieving justice through that procedure, we sometimes find that all these processes are not necessary to achieve the goal. Nevertheless, at some point, encouraging more access to a legal procedure may be at the cost of the significant legal protections that are the very purpose of the procedure. These cases undermine the efficacy of the system and lessen justice. From this perspective, reforming legal processes in order to promote access to justice involves a balancing exercise along a spectrum of access at one end and legal protection at the other end.
A legal system rich in procedure will typically benefit the wealthy rather than the poor, since only the wealthy will be able to afford to access the full range of the legal protection provided by the process. On the other hand, dispensing with protective procedures may leave the process open to abuse, resulting in more harm than good for all parties. For example, in some cases streamlined pretrial procedures may not afford parties the time to fully understand the issues and their respective legal positions. This may result in a longer trial if preliminary matters that might otherwise have been informally resolved must, instead, be played out in a formal adversarial setting. And, in the probate context, simplified procedures may increase the risk of complications in administering the estate. For example, deficiencies with the will which would be revealed in a full probate application might, instead, be discovered only after the estate has been distributed.
The principle of proportionality is widely applied in the legal context to justify the relaxation of procedural protections involved in a legal process in order to reduce the cost for individuals in accessing that process and, thereby, increase access to justice. Proportionality is a response to the concern that our civil justice system “offers perfection for the few and nothing at all for the many”. It recognizes that all the procedures forming part of a particular procedure may not actually be necessary to achieve justice and that, in fact, they may impede realizing justice for more disadvantaged members of our population.
Proportionality has also been recognized as applicable in the context of estate administration. Mr. Justice Brown has called for court staff to adopt a “culture of common sense” in processing non-contentious probate applications. In fact, proportionality is already reflected in the current design of the probate system. In consultations, a government representative estimated that about 80 per cent of probate applications are approved by the Registrar without the need for referral to a judge. This two tier process reflects the fact that, in order to achieve justice, some more complex probate applications require greater judicial resources than do other, more straightforward applications.
Although the principle of proportionality is invoked as a means of improving access to justice, there is a danger is that it may be used instead to promote efficiency at the expense of justice. Colleen Hanycz worries that, in some circumstances, more access may lead to less justice:
Lying at the heart of Woolf’s mandate was the assumption, maintained to this day, that enhancing efficiency results in enhanced access to justice. It is this central, largely untested assumption that is most problematic. Certainly, providing less costly and time-consuming procedural mechanisms would seem logically connected to improving the access of citizens to that procedure. However, the bigger question remains as to whether that same procedure, in the light of its reduced processes, retains the ability to deliver just, accurate outcomes. (emphasis added)
Most of the literature on proportionality in civil justice addresses its application to adversarial dispute resolution processes. Although proportionality is equally applicable to the court’s probate function, it should be applied somewhat more cautiously in this context. This is so for at least two reasons.
First, unlike in adversarial disputes, all the interests at stake in a probate application will not be represented before the court. The court acts not as an adjudicator but as what Frans S. Slatter, in writing about administrative agencies, described as a “determination maker”:
The determination-making function can be distinguished from the adjudicative function in that the former does not involve the resolution of a dispute and is not primarily adversarial. It often involves a finding of the facts that exist and then a decision as to whether these facts fit criteria that may be well or poorly defined.
In probate applications, the testator is no longer able to express her or his intentions to the court and part of the court’s role is to protect these intentions as reflected in the will. Similarly, the court is responsible to protect the interests of beneficiaries and creditors whether or not they are before the court. Any proportionality analysis must be particularly sensitive to these “missing parties”.
A second, and closely related, reason why proportionality must be applied cautiously in probate matters is that the interests before the court are not necessarily quantifiable and, thus, cannot be evaluated by way of a cost/benefit analysis. Justin W. de Vries and Angelique Moss make this point in relation to will challenges and guardianship disputes asking, “[w]hat constitutes costs which are disproportionate when the interests at stake is [sic] the welfare of an incapable individual?”
A cost/benefit analysis must take into account the interests of the parties as well as the system itself. And the interests of the parties may vary. For example, not every estate representative values the legal protection of probate enough to pay the price and undergo the “hassle”, as he or she may perceive it, of obtaining it. Many will be focused on the practical goal of obtaining possession of the estate assets. With their knowledge of the deceased’s family and the circumstances surrounding the estate, they may believe that a legal claim against them is very unlikely. In these circumstances, probate may be perceived as paternalistic and the associated costs will be considered to outweigh any perceived benefits. On the other hand, there may be circumstances surrounding the estate of which the estate representative is unaware. Therefore, the interests of the beneficiaries and creditors must also be factored in here.
Proportionality is a necessary principle informing the design of a small estates procedure that is effective in promoting accessibility while preserving legal protection. However, proportionality is only one piece of the puzzle. In applying a proportionality analysis, it is important not to lose sight of all the interests potentially engaged in a probate application whether or not they are identifiable. It is also important to ensure that the analysis does not slide into a cost/benefit analysis but maintains a concern for protecting vulnerable parties.
B. Other Legal Processes Balancing Accessibility and Legal Protection
This same tension between access and legal protection is played out in a number of other Ontario legal processes. The LCO has examined several processes which might be considered somewhat analogous to probate in order to determine if there are lessons to be learned. In each case we have concluded that there are differences in context which limit the usefulness of these processes as models for a small estates procedure. We discuss four of these here: Small Claims Court, the Simplified Procedure under Rule 76 of the Rules of Civil Procedure, the procedure governing the receipt and administration of monies owing to minors by guardians under section 51 of the Children’s Law Reform Act and unclaimed property programs.
1. Small Claims Court and the Simplified Procedure
Perhaps the most obvious example of a proportional approach to access to civil justice is the development of the small claims court. Ontario’s Small Claims Court has jurisdiction over most civil claims worth no more than $25,000. According to section 26 of the Courts of Justice Act, the Court is required to “hear and determine in a summary way all questions of law and fact and may make such order as is considered just and agreeable to good conscience”. In this section, the word “summary” is intended to reflect a commitment to proportionality and the court procedures involved in a small claims court action are substantially streamlined.
More recently, the Si