This paper has examined the functions of the current probate process, and described why they are important to maintaining the procedural protections that the current probate process provides. It has also examined the principles of accessibility and proportionality, and discussed why they are important in a probate application system. Looking at the barriers that the public may face in accessing the probate system has demonstrated that the current probate application procedure is not proportional where the value of the estate is small, and is therefore likely to be inaccessible. As a result, a simplification of the probate application procedure is recommended.
This paper has also examined several key processes in which accessibility and procedural protection have been balanced. It looked at Small Claims Court, Rule 76 of the Rules of Civil Procedure, the Social Justice Tribunals Ontario, the Landlord and Tenant Board, the Land Titles Registry and Electronic Land Registry System, and the Children’s Law Reform Act in an effort to discover how each of these processes have achieved the balance between accessibility and procedural protection. Several lessons for a simplified probate procedure were identified. This paper has also compared the probate application process with the regime for attorneys under a Continuing Power of Attorney for Property. This comparison gave further evidence that the current probate application procedure may not be proportional to the value, risks, and powers involved in small estate administration.
Finally, this paper has made several recommendations regarding simplification of the current probate application process. It is hoped that these can be implemented together to create a simplified probate application for small value estates. As discussed, such a simplified procedure would greatly increase the public’s ability to access the probate application system, by reducing cost and delay, complexity, the appearance of complexity, and physical inaccessibility. It would do so while still maintaining the procedural rigour and protective functions provided by the probate application process. While undertaking reform is always a daunting task, moving towards a simplified procedure would move Ontario forward by ensuring that proportional procedural systems are accessible to all Ontarians.
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