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.