VI. Part Five: Suggestions For Change

///VI. Part Five: Suggestions For Change
VI. Part Five: Suggestions For Change2017-03-03T18:35:36+00:00

We have seen through this discussion that the functions of probate should, where at all possible, be maintained. Therefore, to increase accessibility in to the probate application system, without weakening the rigours of the application, we must consider altering or simplifying the procedure by which estate representatives apply for probate.

We have seen that where procedure is easy to understand, easy to access, and its mechanisms easy to navigate, a highly proportional system can develop. Such a system would make it easier for Ontarians to access the probate system without draining the value of small estates. A simplified process can reduce the amount of legal advice needed to navigate it, therefore reducing costs.  There are several elements involved in creating a simplified process such as this.

The conclusions presented earlier in this paper suggest a multi-pronged approach to increasing accessibility in the probate system while maintaining its procedural protections: one, simplifying the procedure itself; two, simplifying the forms and their delivery; three, increasing the amount of flexibility in the system; four, increasing physical accessibility; five, providing more legal self-help services and materials; six, moving to a non-court model; and finally seven, creation of an electronic document generator and registration system. Many of these suggestions are interrelated, as they can impact accessibility in deeper ways when they are layered upon each other. Taken together, they produce a probate application system for small value estates that is proportional to the value of the estate, accessible for all Ontarians, yet procedurally rigorous and still able to maintain the protective functions of the current probate application.

 

A. Streamlining and Simplifying the Procedure

Streamlining the procedure itself would increase accessibility by making it less complex, and also making it appear to be less complex. It would address issues of cost created by needing legal assistance, and would address issues of delay engendered by procedural confusion. It would also make self-help legal services more effective. It may require, however, that increased flexibility be built into the system, so that it can remain responsive to individual circumstances.

One idea to consider is whether or not there are parts of the procedure that can either be eliminated altogether, or eliminated as a mandatory requirement in all applications. For example, do all probate applications in Ontario need to include an Affidavit of Execution? Or, can the basic information regarding formalities of execution that are contained in the Affidavit be incorporated into the Application? This would leave the request for a more formal Affidavit to the discretion of the judge reviewing the application. Surely, there are some cases where a separate document would not be required, or where there is no suspicion that the will was executed incorrectly. In those circumstances, removing the mandatory requirement of an Affidavit of Execution would increase accessibility of the system. Retaining the flexibility, however, means that in any suspicious or unclear circumstance, the judge can require the estate representative to provide the Affidavit of Execution.

Altering or eliminating the Affidavit of Execution may increase the risk of fraud where, for example, it becomes easier to probate a will that is either not validly executed, or is not the true last will of the deceased. However, the example of jurisdictions where no Affidavit of Execution is required may be instructive here. Further information would be required to know if empirically or anecdotally, the lack of Affidavit increases the risk of fraudulent applications. It is possible that eliminating the Affidavit altogether, including eliminating the requirement that the information in the Affidavit be required in any form, would increase the risk of fraud, as the procedural protection of the extra affidavit – sworn by someone who is not the applicant – is lost. It may also increase the risk of inadvertent mistake where, for example, the lack of a requirement means the applicant is not alerted to formality of execution as an issue to consider. However, if the information contained in the Affidavit of Execution was incorporated into the Application, this may mitigate some of the increased risk. While the safeguard of the additional affidavit would still be lost, the applicant would still be forced to turn their mind to the issue of execution formalities and provide information regarding execution in the Application. Again, the judge could retain the flexibility and discretion to order an Affidavit of Execution where he or she felt it was necessary in light of the circumstances. As a result, incorporating the information contained in the Affidavit of Execution into the Application could be one method of streamlining the procedure to increase accessibility while presenting a manageable risk of fraud. 

As the procedure develops, other ways in which the procedure itself can be simplified may suggest themselves. Simplification of the forms themselves, discussed below, may also encourage simplification of the process.

 

B. Simplification of the Forms and their Delivery

A major avenue for simplifying the probate application process lies in the simplification of the mechanisms of that application – the forms themselves – in order to make them more easily understood. Re-writing the forms in plain language, perhaps modeled on the Small Claims Court forms, would be a relatively simple reform to undertake, but would make a marked difference in an individual’s ability to access the system. It would make the system less complex, and also appear less complex, and would increase the efficacy of self-help legal guides. It would also help alleviate some physical access concerns, for those with low literacy or with lesser fluency in English and French.

The Notice of Application  can be problematic and/or cause significant misunderstanding and distress for estate representatives, in several ways. First, from a practical perspective, it is an additional form that the estate representative must correctly complete and then serve on the proper parties. The applicant must then complete the required affidavit swearing they gave proper notice.  It is critical to remember that the average Ontarian has little or no experience with court forms or affidavits. In my practical experience, and in the experience of the practitioners I spoke with,  preparing the Notice, deciphering who exactly should receive that Notice, understanding and completing the prescribed method of service, correctly preparing an Affidavit, and having it properly sworn, is a daunting task for most people and one of the biggest barriers to accessing the probate system. Therefore, altering or simplifying the Notice can increase access to the probate system by allowing a greater number of Ontarians to understand the requirements and potentially undertake the application process themselves, or with minimal assistance.

Second, the Notice provides incomplete information to the beneficiary about the size and content of their entitlement. In Ontario, beneficiaries may receive the entire will or the portion relevant to their specific entitlement. However, the Notice does not provide them any information about the actual size of the estate, the relative value of their share, nor any information about the assets contained in the estate. Furthermore, and perhaps most importantly, it does not provide any information about the debts or other liabilities of the estate.  While the beneficiary is not strictly entitled to this information, not providing it can engender suspicion on the part of the beneficiary and create problems for the estate representative later on.

Without further information, the beneficiary may feel that the estate representative is hiding information. The beneficiary may be more likely to develop possibly unfounded suspicions that the estate representative is being unnecessarily slow in distributing the estate, or mishandling the estate assets. They may begin to request more records, and more frequently, causing further delay in administration. Receiving more information about the size and composition of the estate at the beginning of the process may help alleviate some of the concerns a beneficiary develops purely out of being uninformed.

Furthermore, in my practical experience, many beneficiaries have a significant misunderstanding of the complexity and process involved in administering an estate. They may be more accommodating of the time it takes to receive their distribution, even in an estate with no significant delays, if they understand the estate representative’s responsibility to ascertain and pay the estate’s debts and taxes before proceeding to beneficiary distributions. Debts and taxes can be significant drains on the value of an estate that are invisible to beneficiaries who only receive a will, or portion of a will. This leads to misunderstandings regarding the net value of the estate. Having no information about the value of the estate, or the liabilities that may be attached to it, beneficiaries may falsely guess how much they are likely to receive as an inheritance. 

Some beneficiaries may therefore be less anxious about the timing of the distribution to them if they understand, from the beginning, that their entitlement may be of small value.  Providing further information up front may avoid the scenario that the beneficiary finally receives their inheritance, at a much later time and in a smaller amount than they may have imagined on receipt of the Notice, and without further information from the estate representative. Confused, having mentally (or actually) already spent their inheritance, they begin to feel suspicious and angry about how the estate was managed. Their only recourse is then to enforce a passing of accounts by the estate representative, a very costly and time consuming process.

Therefore, providing the beneficiary with different and more detailed information up front could result in a simpler probate process in two ways: simplifying the actual application process that the estate representative faced, through the reduction or elimination of a separate Notice form, and by potentially reducing the amount of friction between estate representatives and beneficiaries, a frequent cause of stress and legal battles. It is telling that in Manitoba, the only jurisdiction that does not require any notice to beneficiaries, at least one practitioner considers it best practice to provide this type of detailed information to the beneficiaries anyway.

As a result, one recommendation to consider is eliminating the current form of the Notice of Application and the Affidavit of Service of Notice, and serving beneficiaries with a copy of the Application instead. This recommendation can be adopted by the project as one element of a simplified probate application procedure for small value estates; however, it is not intrinsic to the value of the estate and could be a useful general recommendation for the probate application process generally. Its value for the small estates project is in its ability to increase accessibility to the probate process for those who may administer a small estate that is not able to bear the cost of outside or professional assistance with the probate application process.

While the Notice serves an important function that should not be eliminated, the current form of the Notice of Application is overly cumbersome on the estate representative. Furthermore, the procedure for serving the Notice could be streamlined as part of an overall simplification of the application procedure. The functional protections of these forms could be retained, and service could be streamlined, by serving the actual Application, complete with a copy of the will, on the beneficiaries instead.

Changes could be made to the Application to include the names, locations and ages of each beneficiary. A simple covering page for the Application could be created, to be included by the estate representative on service to each beneficiary. This covering page could include tick boxes identifying why the beneficiary is receiving the Application, and providing them with some plain language instruction about their rights and the next steps in the process. Furthermore, it could include a statement to the effect that the estate representative must first pay the debts and taxes of the deceased, before calculating the distribution. This kind of statement is included in the Notice forms in both Nova Scotia and Alberta.  A simple, plain language form such as this would increase the estate representative’s access to the probate system by making it easier for them to complete themselves, by simplifying and streamlining the procedure, thereby reducing both complexity and the appearance of complexity. It would also potentially increase the ease with which they administer the estate, by reducing the acrimony that can arise between beneficiaries and estate representatives due to lack of information or misunderstanding about the process involved. Furthermore, self-help legal services and guides could be used to provide greater, easier to understand information about who must be served.

It is my opinion that eliminating the current Notice form and replacing it with service of the Application on the beneficiaries may not, in itself, increase the risk of fraud in the probate application system. This is because the protective aspects that are created by serving the beneficiaries with information regarding the estate and the application still exist in this suggestion. They are merely achieved through a different mechanism – notification using a different form.

One important element to examine, however, would be the timing of such service. Ontario currently requires that service be affected before the application can be submitted. This allows beneficiaries and those interested in the estate time to file an objection or otherwise raise any issue with the application or with the applicant him- or herself. Currently, Nova Scotia is the only jurisdiction where notice of an application is served after probate has already been granted. As a result of this, some of the protective function may be lost, as it may be more difficult for concerned beneficiaries to alter a grant that has already been given; furthermore, the grant may have already been used improperly or fraudulently by the time any objection is raised. Therefore, even if the change is made to allow for service of the Application, instead of a separate Notice, it may be most prudent for the current timing of this service to be maintained.

At the same time, this may present a procedural difficulty. In order for the applicant to know that the Application they are serving on the beneficiaries is complete, accurate, and acceptable to the court, they will need to have it vetted or somehow otherwise approved by the court registry prior to serving it on the beneficiaries. Otherwise, they may prepare an Application and serve it on the beneficiaries, only to be told by the clerk upon application that the Application is deficient in some manner. The process must then start again, with a properly completed Application. This may effectively negate any administrative efficiencies created by serving the Application on the beneficiaries, instead of a Notice form.

This difficulty could be solved in a number of ways. One, the timing of the service could be changed to follow the Nova Scotia model. This would ensure that the Application that is served on the beneficiaries is already approved by the court. However, as considered above, this suggestion may open the application procedure to too many risks of fraud.

Two, the possibility that the applicant need to redo, and re-serve the Application, could simply be accepted as a feature of the system and dealt with on an individual basis. While it may create difficulties for some applicants, it may still be deemed to be a more efficient system than requiring a separate Notice form. Furthermore, the risk of double Applications may be mitigated by increased access to more, and better quality, legal self-help services and materials, which may increase the likelihood that the Application is correctly prepared on the first attempt.

Three, the application could be filed in two stages. In the first stage, the Application and all other supporting documents could be prepared and filed with the court. The Registry would hold them on file, and stamped copies would be returned to the applicant for service on the beneficiaries. Once service is complete, proof of service could then be provided to the court, rendering the application file “complete”. It is only at this stage that the judge would review the file and grant probate. This could alleviate the concern that the Application as served is deficient in some way, because it would be pre-vetted and filed with the court before service. However, this could decrease accessibility in the sense that it would require two trips to the Registry.

One final way to address this procedural difficulty would be through the creation of an electronic document generator, which is discussed in much more depth in section G below. An electronic document generator could be used to create an Application that meets the formality requirements of the probate application, and is produced in a ready-to-serve format for the applicant to send to the beneficiaries. Once done, the entire application, including proof of service, would be brought to the Registry for filing. This is the model that is used in the New York State Small Estate Affidavit Procedure, also discussed below in section G. While this suggestion may eliminate the need for two trips to the Registry, it would not address situations where substantive deficiencies may be found with the Application upon filing which require correction. For example, if the user of the document generator misunderstands the instructions, they may serve an Application on the beneficiaries that will still require correction.

To some extent, however, it may not be possible to address and prevent every circumstance of formal or substantial non-compliance with the application requirements. The best that any application procedure can hope for is to create a system that is easy to use, understand, and access for the vast majority of the population and that also does not increase the risk of misuse, abuse, or fraud within that system. Certainly in the current system, corrections and re-filing do occur. As has been discussed, it is not uncommon for applicants to misunderstand the Notice of Application and prepare, or serve, it incorrectly. Therefore, while eliminating the separate Notice and requiring service of the completed Application instead may create a procedural difficulty, four potential solutions to that difficulty have been presented, demonstrating that it may be possible to overcome the difficulty and retain the benefits of this suggestion, outlined above.

 

C. Encouraging Discretion and Flexibility

Where the value of the estate is small and the financial risk of fraud or mismanagement is minimal, the encouragement of flexibility, discretion, and a relaxation of the formality and precision required in the forms should be explored as a further avenue to increasing accessibility. Estates clerks see estates forms every day and have an immense body of knowledge and familiarity regarding what information is or ought to be included, or what is missing. However, they are not able to provide legal advice or assistance, yet are frequently faced with self-represented applicants who do not know how to proceed. The requirement to prepare things in a uniquely prescribed manner can be frustrating for individuals who do not have sufficient information about what that prescribed manner truly is.

Discretion and flexibility allow administrative officials to choose whether or not to do a certain act that is within their power to do, based on their assessment of all the circumstances.   Indeed, discretion, flexibility, and reduced formalism are the primary lessons from administrative tribunals and the SJTO. They increase accessibility, efficiency and the speed of dispute resolution, while limiting the amount of formality. 

Encouraging discretion at the clerk level – giving them an increased mandate to use the knowledge they already possess, or else pass it to the judge – could be one method to increase accessibility by reducing formalism. Increasing discretion, however, must be accompanied by an overall increase in flexibility in the system; otherwise, it only creates more delay as the clerks accept more defects, only to have those defects returned by the judge. In practice, then, separating substance from form may be difficult. Where information is not present, the clerks may not feel able to accept the application; however, that information may be missing for a substantial, legal reason meant for a judge’s discretion.

Context is already important in probate applications. For example, based on my own practical experience, the rule requiring that estate representative listed in the will, but not applying for probate, provide a signed Renunciation to the applicant is one such area where flexibility and discretion are important. If this rule were to be enforced universally regardless of circumstance, it would be impossible to obtain a COA in any estate where one of the listed estate representatives was alive, but incapacitated or otherwise physically or mentally unable to swear a Renunciation form. This can often occur where a parent dies and their spouse is listed as the estate representative, but the spouse is incapacitated and unable to apply. In that circumstance, the second choice estate representative must apply, and may need to rely on the discretion of the clerk to accept an application where the reasons for no Renunciation is present, but the reasons for that are properly evidenced. Thus, discretion and flexibility are already critical elements in the probate application process. Increasing that discretion, where its goals, purpose, and limits are clearly defined, and where the factors and circumstances to be considered are enumerated,  could be a very useful tool for probate applications in Ontario generally. Furthermore, that discretion may be an even more critical element in a small estates procedure, as it allows for a proportional balance between the size of the estate and the procedural rigours involved.

However, increasing discretion and flexibility must be balanced against the risk of fraud. It is possible that increasing flexibility may make it easier for fraudulent applicants to, for example, work their way around procedural requirements that would act to protect the estate from fraud. Using the example above, increased flexibility may make it easier for an unscrupulous applicant to convince the clerk that no Renunciation is needed in a particular instance, even where the applicant is not the first-named estate representative in the will, and even where the applicant is intending to use the COA for fraudulent purposes. If it were to emerge later than the first-named estate representative was capable of applying, and was intending to apply, and had never renounced or intended to renounce their right to apply, it is possible that increased flexibility may have been the tool that allowed a fraudulent applicant to gain access to the estate. Therefore, increasing flexibility and discretion is a suggestion that would have to be very carefully managed in order to ensure that it does not increase the risk of misuse, abuse, or fraud of the probate application system.

Thus, the following questions must be asked: is there a way to increase flexibility in the system, and give clerks a greater mandate to provide more information, without crossing the line into legal advice? Is there a way to do this without increasing the risk of fraud, or can any increased risk of fraud be mitigated in other ways? Is there a way to increase flexibility by giving the clerks the discretion to accept more forms with defects, thereby allowing the reviewing judge to be the arbiter of what is or is not acceptable? Or, should another method of providing this guidance to estate representatives be considered, if it would indeed cross the line into legal advice? Are there different or new fraud checks that should be introduced into such a system? Suggestions along this path should be sought and thoroughly reviewed, as increasing flexibility may have a very big impact on the accessibility of the probate application procedure.

 

D. Increasing Physical Accessibility

Methods to increase physical accessibility should be considered in any simplified probate application procedure, whether they be through actual accessibility of the buildings themselves, through technological advances such as e-filing or electronic registration, through automated document production (discussed below), through longer or different opening hours, or through having more Registry offices, outside of courthouses in more accessible locations such as shopping malls or community centres, and in more communities.  This would also help address accessibility issues in northern, rural, and remote communities. These accessibility issues may be particularly compounded in small value estates, to the extent that small value estates are more prevalent within lower-income communities, as well as those that face more particularized barriers such as language, citizenship status, socio-cultural factors, or employment status. Although physical accessibility issues will not be unique to these populations, their effects may be heightened within these communities. As a result, increasing physical accessibility may result in a higher proportional increase of accessibility among these communities than elsewhere.

Increasing physical accessibility may not impact the risk of fraud in the probate application procedure. It would not alter the actual procedure that exists, and it may not impact the efficacy of the gate-keeping function that the registry, and the application procedure itself, plays in addressing the risk of fraudulent applicants or applications. One possible issue could be that if additional registry offices are opened, or if they are given longer opening hours, more staff may need to be hired and trained. This may increase the likelihood that errors are made at the staff level or that red-flags for fraud are missed. However, this risk can be mitigated and managed by proper and continuous training. Increasing the number of clerks should not necessarily impact the level of professionalism and expertise present among the clerks currently, although care would have to be taken not to expand too quickly or without proper care and training.

The Small Claims Court model demonstrates that even where simplified procedures with low monetary thresholds exist, physical access to those procedures can remain an issue. Services to increase accessibility for those with disabilities and language barriers should also be implemented. For example, having plain language self-help legal guides, instructions and manuals in print, online, by audio, and in a multitude of languages, would make them more accessible to more diverse populations. This is discussed in more depth below, but is an important component of increasing accessibility. 

Much effort must also be put into ensuring that the system increases accessibility for all segments of the population, regardless of value, so that it achieves the goals it sets out for itself. 

 

E. Providing More, and Better, Legal Self-Help Services and Materials

The Small Claims Court model demonstrates that the ability and ease with which people can represent themselves in a court process is a necessary, but not sufficient, requirement for increasing accessibility.  That is, it is one important tool of increasing accessibility, but should be only one of many avenues that stakeholders pursue.  Simply reducing the complexity of the process is not sufficient. To be successful, any simplified procedure must be accompanied by significant legal self-help services and educational tools, in order to also reduce the perception of complexity, so that individuals feel empowered to utilize the mechanisms available to them.  It must also make efforts to reduce the cost of legal representation in order to make the system more accessible in those situations where legal advice is necessary. 

The Small Claims Court self-help legal manuals and guides present one model to follow. As discussed above, for a system to be accessible, it is critical that this information be accessible in a multitude of languages and formats. Plain language forms, discussed in Section B, would make these self-help services more applicable. Another model to consider may be the income tax preparation guides prepared by the Canada Revenue Agency every year. These guides are mass-produced, readily available in locations such as post offices and pharmacies, and designed to help individuals with no tax background and uncomplicated taxes complete, prepare, and file their income tax forms themselves.

Providing increased and better self-help guides and materials is not a suggestion that should be unique to small value estates, but it may be more applicable to small value estates. As discussed, small value estates may be least able to bear the cost of needing legal assistance to prepare the application; as a result, estate representatives for small value estates may be more likely to seek out, access, or use self-help legal guides and materials. They also may use self-help guides to narrow the focus for any legal advice or assistance sought, and to help reduce the perception of complexity within the application system. To any extent that small value estates may be correlated with socio-economic factors such as language barriers, cultural barriers, or educational barriers to accessing the application system, self-help services and materials may be more relevant to small value estates by helping to reduce complexity, the perception of complexity, as well as the inaccessibility of the probate application system for these populations.

Increasing the availability and quality of self-help legal guides many not impact procedural protection; if it does, the increased risk may be manageable through other components of the application process. It is possible that demystifying the process for the public may increase the ease with which unscrupulous individuals access the system, although it is by no means certain that this would be the case. Again using the Canada Revenue Agency’s tax preparation guides as an example, it is not clear if or how the wide availability of these guides could have increased the level of tax fraud in the system. They simply guide individuals on what to include in each line of the applicable tax form. Probate application guides and self-help materials could operate in the same manner for the probate application forms. These guides may actually reduce the risk of inadvertent or accidental mishandling of the estate by increasing the amount of education and guidance estate representatives read and receive regarding their duties as estate representative.

However, even if an increased risk of fraud is created by increasing the availability and content self-help guides and services, the existence of these guides would not not prevent the other procedural protections in the estate application process from functioning normally. They would not alter the actual application system, merely assist individuals in understanding and navigating that system. Therefore, even if increased legal self-help services and materials do increase the risk of misuse, abuse, or fraud of the probate application, this may be a risk that can be mitigated through the checks for fraud that exist elsewhere in the probate application system. Furthermore, the risk may be considered worthwhile if the overall result is increased accessibility and education for the vast majority of scrupulous, well-intentioned estate representatives.

One method of providing such increased self-help services is the electronic document generator, discussed below in Section G.

 

F. Moving to a Non-Court Model

The SJTO’s flexibility, and the experience of the Landlord and Tenant Board, shows us that we should be creative in seeking to tackle the issues of accessibility and proportionality and not be afraid to think outside the realm of what is done or what has always been done in contemplating a simplified probate application procedure. The flexibility of the Common Rules of the SJTO, for example, serve a very particular, purposeful function. They serve the goals of efficiency in decision-making, savings of government resources by reducing court backlogs through creation and use of tribunals, as well as streamlining of the procedures of the tribunals themselves. Most importantly, the rules increase the public’s access to critical dispute resolution and decision review in a fair and impartial manner regarding services and programs that touch fundamental aspects of the individual’s life and well-being.

Taken together, increasing discretion and flexibility and reducing formalism, as discussed above, as well as moving towards an electronic system, as discussed below, could move the probate application procedure quite a ways outside the traditional court model. Based upon my research and in my opinion, moving a small value estate probate application procedure to a non-court model could have much to recommend it. Increasing flexibility and discretion while reducing formalism could be especially useful in a small-value estate application procedure, much the way reduced formalism and increased flexibility has functioned well in the model of small claims courts. Values under a certain threshold may lend themselves to reduced formalism and increased flexibility because they increase the ability for applicants to self-help or self-represent, while reducing the likelihood that legal assistance may be required in precisely those estates that are least able to bear the cost. It is therefore possible that moving the small value estate probate application procedure towards a non-court model could help incorporate the flexibility, efficiency, efficacy, and accessibility of those models and of the Small Claims Court studied in this paper. In general, then, I do believe that the idea of moving to a non-court model bears serious consideration.

However, in practice, there are many unanswered questions regarding such a move. How would a non-court model deal with cases that become contentious? One suggestion may be for a non-court model that deals strictly with probate applications. Once probate is granted, anything else that must be done with the estate would proceed, as currently, in the court system. This would not be substantially different than the system currently in place, except in the creation of a body or mechanism outside the courthouse and court registry for reviewing and approving probate applications. However, how would such a model deal with grants of probate that need to be reviewed, revoked, or altered in some way – would those reviews proceed in the non-court model, or in the court system? This model may mimic administrative law practices. In this suggestion, the granting of probate in a small value, non-contentious estate would be seen as an administrative decision. Internal mechanisms could be implemented to provide review of those decisions; the court could act as an external review where all internal mechanisms have been exhausted or where the file moves outside the purview of internal administration.

As the rate and incidence of estate litigation continues to increase, it is not likely possible to move estates outside of the litigation world altogether. One could argue that a non-court, administrative-type model could incorporate mandatory alternative dispute resolution and/or case management, such as exists in the Simplified Procedure. This could reduce the number of cases that end up in litigation. Nevertheless, a mechanism to easily transfer files from the non-court model to the traditional court system would likely still need to be implemented, regardless of the value of the estate. It simply isn’t possible, at the time of the application, to know if a probate matter or estate is going to become complex or contentious later on. You can never know, at the outset, all of the issues that may arise, those that may be easily dealt with, or those that may become unexpectedly complex. Furthermore, as in the wider court system, some files are simply not going to resolve through alternative dispute resolution, either because the issues cannot be fully negotiated, or the parties are intractable. As a result, any model for moving estates outside the realm of the court will need to grapple with contentious dispute resolution in some way.

This begs the question, how would this transfer process operate in practice? If the rules, forms, and procedures are substantially different in the non-court model, how would this work for clients and files that must be transferred back to the court? Much care would have to be taken to ensure that the transfer process does not unfairly disadvantage self-represented parties, who may enter the non-court model without legal assistance because they believe they can use it to avoid litigation, only to end up in court without having ever received proper advice. It is possible that the two processes would encourage parties to push for litigation at an earlier stage, because they do not want to “waste time” in the non-court model, only to require legal assistance in the end anyway.

It is possible also that a non-court model, with a transfer mechanism, would create more complexity than it solves, and/or increase the perception of complexity among the general population. Practitioners, too, would have to buy-in to the system, in order to become adequately well-versed in working within the non-court model, as well as transferring files to traditional court. The example of Simplified Procedure may be instructive here, as it includes a transfer mechanism in and out of the small value process, even though the Simplified Procedure itself is still a court process; furthermore, as examined in this paper, not all practitioners have embraced the Simplified Procedure. Practitioner buy-in could have significant ramifications for the success of any such non-court model for small value estates.

Clearly, there is much to be discussed in any move to a non-court model for probate applications, regardless of the size of the estate. Furthermore, as discussed earlier in Part Two, Section B of this paper, the difference in degree, rather than in wholesale nature, revealed by the move towards increased flexibility and discretion in the non-court models examined in this paper suggest that in some ways, moving to a non-court model may not be necessary. It may be possible to achieve and create a simplified application procedure for small value estates that is flexible, accessible, and proportional without the fundamental changes involved in a move to a completely non-court model. As well, making sufficient changes in the current model this would address the procedural difficulties contemplated above.

In my opinion, a non-court model for a simplified small value probate application procedure is an interesting idea that merits further exploration and study. However, it would be a bold action that may not be altogether necessary if sufficient change can be accomplished in the current system. Any such move would have to be carefully planned and implemented in order to ensure that it does not create more problems than it solves.

 

G. Creation of an Electronic Document Generator and Registration System

One option that can and should be considered is creating an electronic registry for small value probate applications in Ontario. There is precedent for this outside the probate context, as some courts in Canada have already moved to allow e-searching and even e-filing of court documents, for at least some matters.  The automation of document production is a particularly intriguing aspect of such a system that could, in my opinion, greatly increase accessibility to the probate application procedure for members of the public. Individuals could be guided electronically through inputting the information required in a probate application. Such a system could then generate, at the end of the process, documents and affidavits ready to be signed and sworn. This would greatly increase the ability of individuals with small value estates to complete the application process themselves, thus reducing cost, complexity, and delay, and increasing accessibility.

Furthermore, an online or electronic registration system for probate would reduce government costs in terms of staff and resources by reducing the number of probate applications that the Clerks must deal with themselves, thus freeing them to concentrate on estates that do not fall below the small value threshold.  It could increase the efficiency behind the application procedure by enabling automatic, real time registration of documents. It could also help lead to standardization in terms of the application of policies, rules and procedures across the province. For example, it could help ensure that there isn’t flexibility about a rule or document in one county, but not in other counties. It may also lead to a standardization of wait times across the province, so that, for example, probate applications in Toronto are not excessively delayed, while on the same day they may be quickly processed in Kingston or Thunder Bay or Niagara.

It could, depending on the system, eliminate the need to file the application in the county of the deceased’s last residence. This would enable the probate application procedure to be accessed from anywhere in the province, thereby further increasing accessibility. It could also help address concerns of physical accessibility, although it would potentially increase concerns regarding computer and internet access and literacy concerns, as well as confidentiality. However, as the internet-savvy generation continues to age, and as computer and internet access reach ever more remote corners of the province, the applicability of this concern would decrease.

Such a system would likely still require a judge’s review and approval of the documents before the Certificate of Appointment is granted. However, the process of the application itself could be automated, so that clients are guided through the creation of the documents, provided with finished documents that can be printed and signed/notarized, perhaps provided with the opportunity to then upload and electronically file those documents with the electronic registration system (or file them in person if so desired), and provided with a court file or application reference number, as they would be in person. An intelligently designed electronic system would prevent individuals from proceeding to the next screen, or the next step in the process, if the preceding step or screen is not satisfactorily filled out.  The system could calculate the application fees or estate administration tax, provide for online or credit card payment of such fees, and provide an automatic receipt. The information could then be printed or sent electronically to the Registry, and then on to the judge. Once the COA is signed, it could be mailed (or in future, electronically delivered) to the estate representative.

With an electronic system, especially one that is intelligently designed, the risks of fraud could be mitigated. One significant advantage regarding fraud that E-LRS may have over the probate system is that land is not an asset that can be moved out of province or hidden away.  As a result, the risk of fraudulent listing of assets appears higher in a proposed electronic probate application system. However, that risk is not substantially increased in an electronic probate application system from a paper-based system, as there is no check of assets done by the Estates Desk staff. It remains, in the current system, for the judge, or the beneficiaries, to raise issues such as asset fraud. Therefore, an electronic probate application system that simply guides users towards the creation of pre-approved documents ready for registration does not appear to substantially increase the risk of asset fraud. Furthermore, the risk of fraudulent dealings concerning assets remains in the current probate system, as the risk typically occurs after the COA is granted, and not at the application stage.

Another possible risk is increased identity fraud on the part of the estate representative. Again, however, this is a risk that would not be significantly increased from the current system. In the current probate application procedure, there is no scrutiny of the identity of the person applying as the estate representatives at the court office; individuals who appear with completed documents to file a probate application are not required to show any identification. The application does require affidavits that must be sworn in front of a Notary Public or Commissioner of Oaths who should, of course, be verifying the identity of the affiant/applicant. Nevertheless, in the current system, the only verification of the identity of the estate representative applicant is at the stage of swearing the affidavits. One possible solution would be to restrict the electronic system to the production of documents alone, and leave the actual registration of documents to the Clerks (rather than enable online or electronic registration). Proof of identity could then be required and provided on registration, or provided through a sworn statement of identity from the Notary or Commissioner of Oaths that witnesses the swearing of the required Affidavits. However, an electronic system that generates completed documents and affidavits ready to be taken to be sworn, even if that electronic system then permitted you to upload and file those sworn affidavits electronically, would not result in the loss of any scrutiny or checks on the estate representative’s identity in comparison to the system that currently exists.

Taken together, an electronic probate application document creation and registration system such as this could present a seamless application procedure for many small-value estate representatives. Where problems arise, the Clerks would remain available to answer questions, or the estate representative may need to proceed towards obtaining legal advice. However, for many estate representatives, some guidance on proper completion of the documentation may be all they need to enable them to complete the probate application procedure themselves. Therefore, the electronic system is an idea that bears serious consideration as Ontario moves forward towards consideration of how to implement a simplified probate application procedure for small estates.

Should Ontario choose to adopt such a system for small value probate applications, it would not be the first one in existence, which bodes well for the idea.  An excellent model for an online, electronic small estates document creation program exists in the New York State Small Estate Affidavit Procedure (“SEAP”), as described in the Consultation Paper.  The SEAP has a free, user-friendly, online plain language guide that produces a completed Affidavit ready for filing, as well as instructions for how to file. For the purposes of this paper, I accessed the SEAP online Affidavit service, using made-up information about a fictional deceased, in order to see how the program worked. I did not complete the process to its very end, as I did not want to generate real documents. I ended the program at the last step before I reached the “Congratulations” that the program was prompting me towards.

The program prompts the user to enter the required information in a particular order, and does not allow the user to proceed to the next screen without fully completing the required information. It allows users to create an account that will save their inputted information, so that they may return and complete the affidavit process at a later date. It prompts the user about additional forms or paperwork that may be required, such as the original will, or a Renunciation. It has pop-up text bubbles that explain any terminology used (such as “distributee” – a person who is entitled to receive something from the estate – or “non-marital child”), as well as answering commonly asked questions.  It requires the user to read and agree to by a separate click box, each of the estate representative’s duties.  Interestingly, it prompts the user to input names and addresses of all the beneficiaries listed in a will, as well as any other distributees. This apparently allows the court to generate the notices that are sent to beneficiaries. Clearly, then, in New York’s SEAP, it is not the estate representative who prepares and sends the notices to beneficiaries, but the court staff. 

The New York SEAP is certainly a model that points towards the possibility of an electronic or online document creation, and possibly registration, system. The fact of its success in New York bodes well for possible adoption in Ontario. Therefore, the creation of such an online system is one important solution for increasing accessibility in the probate application procedure for small estates, while maintaining a proportional balance with the required procedural rigour.

 

H. Using the Suggestions for Change Together

The suggestions for change discussed above could each be implemented individually in order to improve accessibility. However, many of them can also work together as part of the multi-pronged approach needed to effectively address concerns over accessibility while maintaining procedural protection. For example, increasing physical accessibility and providing more, and better, legal self-help materials are overarching suggestions that would increase accessibility to the probate application procedure by themselves, even if nothing else was done. However, using them in conjunction with other suggestions ensures that accessibility is tackled in a multi-dimensional way. Ignoring physical accessibility issues, for example, regardless of what else is done, could still result in a system that is inaccessible for portions of the population. Therefore, the options in this paper are suggested so that they may be used together, as part of an overall simplification process of the procedure, using a multi-pronged approach to increasing accessibility while maintaining procedural protection.

For example, an electronic document generator, coupled with greater legal self-help services, could create an easy-to-use, plain language interface to guide individuals through the creation of their application documents. The document generator could assist in streamlining the procedure by, for example, creating an Application that is designed to be served on the beneficiaries, rather than also creating separate Notice forms that are to be served. The document generator could generate a list, based on the information provided and for the applicant’s own benefit, of those who must be served with a copy of the Application. It could also include instructions about the next steps: notarizing or commissioning the affidavits, and then filing them at the court registry. This could increase accessibility for applicants by reducing complexity, reducing the perception of complexity, and reducing cost.

Once the affidavits are notarized or commissioned, longer or different opening hours at the court registry, or registry-only offices that are opened outside of court houses in more accessible locations, could also increase accessibility. Once at the registry office, increased flexibility or discretion in the application system could help reduce delay, thereby even further increasing accessibility.

Furthermore, if these suggestions are found to impact procedural protection, this impact may be manageable through other parts of the process. For example, increasing or altering the opening hours of the registry, or opening registry-only offices in more accessible locations that would allow for filing of documents without attending at the courthouse, would not impact the procedural protections of the application itself. They simply render it less difficult for the actual application to be filed. Likewise, 

As a result, while each individual suggestion for change could increase accessibility on its own, the suggestions can also be interwoven and work together to create a more balanced, accessible probate application procedure for small value estates that nevertheless maintains appropriate procedural safeguards and protections.

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