[1] Rodney Hull , Q.C., and Ian M. Hull, Macdonnell, Sheard and Hull on Probate Practice, 4th ed., (Toronto: Carswell, 1996), 1-2.
[2] Hull, note 1, 1-2.
[3] Ontario Law Reform Commission, Report on Administration of Estates of Deceased Persons (Toronto: 1991), 7.
[4] Ontario Law Reform Commission, note 3, 7.
[5] Hull, note 1, 2.
[6] Ontario Law Reform Commission, note 3, 9-10.
[7] Ontario Law Reform Commission , note 3, 10.
[8] Hull, note 1, 2.
[9] Law Commission of Ontario, Simplified Procedure for Small Estates in Ontario Consultation Paper (Toronto: September 2014), 7-8.
[10] See, for example, Leopold Amighetti Q.C. and Darrell Wickstrom, “Claims Against the Estate for Debts”, in Carmen S. Theriault, ed., Widdifield on Executors and Trustees, 6th ed. (Toronto: Carswell, 2002-), 3-1 – 3-4.
[11] Wendy Templeton, Wills, Trust and Estate Administration: Step Diploma for Canada, 1st ed. (Toronto: Society of Trust and Estate Practitioners, 2010), 8-4.
[12]  Templeton, note 11, 8-7.
[13]  Templeton, note 11, 8-6
[14]  Templeton, note 11, 8-4.
[15]  Templeton, note 11, 8-5.
[16]  Templeton, note 11, 8-5.
[17] Templeton, note 11, 8-5.
[18]  The main exception to this is Quebec, which is not covered by this discussion as it does not follow a common-law system.
[19]  Ontario Superior Court of Justice Form 74.8
[20]  Rules of Civil Procedure, O.Reg. 170/14.
[21]  Rules of Civil Procedure, note 20, 74.04(1)(c)
[22]  In my practical experience in the Yukon, however, a judge may request further information on this point if, after review of the file, he or she deems it necessary.
[23]  I confirmed this in a phone call with John Delaney, Barrister and Solicitor specializing in wills and estate administration with Tradition Law LLP in Winnipeg, Manitoba, on 20 November 2014. The only form in Manitoba that must be sent to beneficiaries is that which lists the tariffs that lawyers may charge for acting for the estate representative. He did not have any insight into why Manitoba does not require notice to be sent to all the beneficiaries, and was surprised to learn that this is a requirement in the other common law jurisdictions across the country. John told me that, when acting for an estate representative, he personally has a practice of sending a copy of the will and a letter to residuary beneficiaries advising them of the death, of roughly what they may be entitled to, and whether or not he anticipates, at that preliminary stage, any issues of abatement. He includes a caution that the entitlement is subject to the debts and tax liabilities being resolved, and therefore the final amount may be quite different. However, there is no statutory requirement to send any kind of notice whatsoever in Manitoba; John does it as a best practice, because he feels it assists the estate representative later on if the beneficiaries have some awareness of the process and their potential entitlement. He may alter the content of the notice if the estate representative objects, for example, if the estate representative does not wish all the beneficiaries to have a copy of the will and therefore know what all the other beneficiaries are entitled to.
[24]  Nova Scotia Probate Court Practice, Procedure and Forms Regulations, S.N.S. 2000, c.31, O.I.C. 2001-450, s.44(1).
[25]  Nova Scotia Probate Regulations, note 24, s.44(2).
[26]  Yukon Supreme Court, Form 73.
[27]  Supreme Court of Prince Edward Island, Form 65X.
[28]  Ontario Superior Court of Justice, Form 74.4.
[29]  Yukon Form 73, note 26.
[30]  Alberta Surrogate Court Form NC 19.
[31]  Nova Scotia Probate Court Form 24.
[32]  Ontario Form 74.4, note 28.
[33]  Ontario Form 74.4, note 28.
[34]  See, for example, Yukon Supreme Court Form 72.
[35]  Saskatchewan Probate Court Statement of Property.
[36]  Yukon Form 72, note 34.
[37]  Manitoba Court of Queen’s Bench Form 74B.
[38]  Similar to that in Ontario’s Form 74.4, note 28. Nova Scotia Probate Court Form 8.
[39]  Probate Act, S.N.S. 2000, c.31, s.57(1), and Nova Scotia Probate Court Regulations, note 24, s.45.
[40]  I confirmed this in an email conversation with Bianca C. Krueger, Barrister and Solicitor specializing in estate administration at Cox & Palmer, Halifax, Nova Scotia, 13 November 2014.
[41]  Ontario Superior Court of Justice Form 74.11.
[42]  In Ontario, Consent to Applicant’s Appointment as Estate Trustee with a Will is Form 74.12, and Consent to Applicant’s Appointment as Estate Trustee without a Will is Form 74.19.
[43]  In Ontario, this is double the amount of the estate: Estates Act, R.S.O. 1990, Chapter E.21, s.37(1), unless reduced by the judge under s.37(2)
[44]  see Ontario Ministry of the Attorney General, “Frequently Asked Questions About Estates: What Is a Bond?” online: http://www.attorneygeneral.jus.gov.on.ca/english/estates/estates-FAQ.asp#s7 (last accessed 12 December 2014).
[45]  In Ontario, this is ss.35-43 of the Estates Act, note 43, and Rule 74.11 of the Rules of Civil Procedure.
[46]  Templeton, note 11, 8-19.
[47]  Templeton, note 11, 8-18.
[48]  Templeton, note 11, 8-19.
[49]  Roderick A. Macdonald, “Access to Justice in Canada Today: Scope, Scale and Ambitions” in Julia Bass, W.A. Bogart and Frederick H. Zemans, eds., Access to Justice for a New Century – The Way Forward (Toronto: Law Society of Upper Canada, 2005), 19.
[50]  Shelley McGill, “Small Claims Court Identity Crisis: A Review of Recent Reform Measures”, (2010) 49 Can. Bus. L.J. 213, 214, 217.
[51]  Seana C. McGuire and Roderick A. Macdonald, “Small Claims Courts Cant” (1996) 34 Osgoode Hall L.J. 509, 510.
[52]  McGill, note 50, 215-216.
[53]  Macdonald, note 49, 19.
[54]  Jane Bailey, “Digitization of Court Processes in Canada” Cyberjustice Laboratory Working Paper No.2 (23 October 2012), 3, online: http://www.cyberjustice.ca/wordpress/wp-content/uploads/webuploads/WP002_CanadaDigitizationOfCourtProcesses20121023.pdf (last accessed: 18 November 2014).
[55]  Macdonald, note 49, 35.
[56]  Macdonald, note 49, 20.
[57]  Macdonald, note 49, 20-21.
[58]  Bailey, note 54, 3.
[59]  Mr. Justice David M. Brown, “A View From the Bench”, in Melanie A. Yach, ed., Key Developments in Estates and Trusts Law In Ontario, 2010 edition (Aurora: Canada Law Book, 2010), 1.
[60]  Justice Brown, note 59, 1.
[61]  Carole J. Brown and Steven Kennedy, “Changing the Rules of the Game: Rewinding the First Ten Months of the New Rules of Civil Procedure” (2010-2011) 37 Advoc. Q. 443, 462-463.
[62]  Rules of Civil Procedure, note 20.
[63]  Courts of Justice Act, R.R.O. 1990, Regulation 194.
[64]  See, for example, the discussion in C. Brown, note 61, 463-464.
[65]  Szeto v. Dwyer, 2010 NLCA 36, 297 Nfld. & P.E.I.R. 311, para.53, as quoted in Hryniak v. Mauldin, [2014] 1. S.C.R. 87, 2014 SCC 7, para. 31.  The Supreme Court of Canada in Hryniak, above, used this quote to explain the proportionality principle and how it is to be applied by courts.
[66]  Susan A. Easterbrook, “Costs in Estate Litigation” in Melanie A. Yach, ed., Key Developments in Estates and Trusts Law In Ontario, 2010 edition (Aurora: Canada Law Book, 2010), 155.
[67]  The Honourable Coulter A. Osborne, Q.C., “Summary of Findings & Recommendations”, Civil Justice Reform Project (November 2007), 134, online: http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/cjrp/CJRP-Report_EN.pdf (last accessed 22 November 2014).
[68]  As discussed in Justice Brown, note 59, 5.
[69]  Justice Brown, note 59, 7.
[70]  Justice Brown, note 59, 7.
[71]  Justice Brown, note 59, 7.
[72]  Easterbrook, note 66, 161.
[73]  Easterbrook, note 66, 159.
[74]  On cost as an issue and how it can arise, see Gerald L. Gall, “Efficient Court Management”, in The Canadian Institute for the Administration of Justice, Expeditious Justice: Papers of the Canadian Institute for the Administration of Justice (Toronto: Carswell, 1979), 108.
[75]  Emphasis added.
[76]  Hryniak v. Mauldin, note 65, paras. 28-30.
[77]  This topic has already been examined in the LCO’s Consultation Paper for this project: see Law Commission of Ontario, note 9, 20-21, 25-27.
[78]  Straight quantum of value, however, may not accurately reflect the proportional value of the loss to the individual beneficiary.
[79]  see McGill, note 50, 234-235, for criticisms of the Ontario Small Claims Court in this regard.
[80]  McGill, note 50, 234.
[81]  I expect that the public consultation process undertaken as part of this project may provide rich source material for this discussion.
[82]  Gall, note 74, 108-109.
[83]  Macdonald, note 49, 27.
[84]  Macdonald, note 49, 27-28.
[85]  Macdonald, note 49, 28.
[86]  See, on this topic in California, Charles P. Kindregan, “The California Crawl: Reforming Probate Administration in California”, (1979) 19 Santa Clara L. R. 1., 5.
[87]  See, for example, the doctrine of the executor’s year, or the duty not to waste assets, which may be impacted if the estate representatives delays in dealing with them: James F. Kennedy, “Bequests and Beneficiaries”, in Carmen S. Theriault, ed., Widdifield on Executors and Trustees, 6th ed. (Toronto: Carswell, 2002-), 5-1, 5-6; Elena Hoffstein, “Resignation, Removal and Appointment of Trustees” in Carmen S. Theriault, ed., Widdifield on Executors and Trustees, 6th ed. (Toronto: Carswell, 2002-), 15-17.
[88]  Telephone conversation with Wendy D. Templeton, Barrister and Solicitor specializing in Estate, Trust and Tax Planning, 27 October 2014.
[89]  In-person conversation with Donna Neff, Barrister and Solicitor, Neff Law Office, LSUC Certified Specialist in Estate and Trust Law, 5 November 2014.
[90]  See, on this topic, British Columbia Law Institute Succession Law Reform Project, Interim Report on Summary Administration of Small Estates (Vancouver: December 2005), 7-8.
[91]  Gall, note 74, 108.
[92]  Legal Aid Ontario, “Are you looking to settle a will, an estate matter, or an inheritance?” on the Legal Aid Ontario website, online: http://www.legalaid.on.ca/en/getting/type_civil.asp (last accessed 4 November 2014). There may, however, be other pro-bono legal services available that will provide advice on estate application matters. The presence of such a service at the 393 University Avenue court in Toronto was suggested to me by Heather Hogan, Barrister and Solicitor at Whaley Estate Litigation, in a telephone call on 24 November 2014, although it is not clear from the Pro Bono Law Ontario website that this is a service that they actually offer.
[93]  Macdonald, note 49, 28.
[94]  Macdonald, note 49, 28.
[95]  http://www.ontariocourtforms.on.ca/english/civil/pre-formatted-fillable-estates-forms (last accessed 14 November 2014).
[96]  I heard this comment many times from clients in practice, and heard it repeated by all the Ontario practitioners I spoke to: Wendy Templeton, note 88, Donna Neff, note 89, and Heather Hogan, note 92.
[97]  Again, this is based on my experience as a practitioner.
[98]  Ontario Form 74.4, note 28. The following is based on my own reading of the Form, attempting to place myself in the position of someone with no previous familiarity with the process.
[99]  Constance Backhouse, “What Is Access to Justice?” in Access to Justice for a New Century: The Way Forward (Toronto: Law Society of Upper Canada, 2005) 121-122.
[100]  Macdonald, note 49, 29-30.
[101]  Backhouse, note 99, 122.
[102]  Macdonald, note 49, 27.
[103]  Macdonald, note 49, 27.
[104]  Macdonald, note 49, 27.
[105]  Chief Judge Heino Lilles, Territorial Court of the Yukon, “Some Problems in the Administration of Justice in Remote and Isolated Communities”, presentation to the C.I.A.J. Conference, October 11-14, 1989, 7.
[106]  Lilles, note 105, 6.
[107] Lilles, note 105, 8.
[108]  Lilles, note 105, 8.
[109]  Lilles, note 105, 23-24. It is unclear to me how much First Nations communities in Ontario are affected by accessibility to the probate application system, since the estates of First Nations citizens still covered by the rubric of the Indian Act are administered under that Act by Aboriginal Affairs and Northern Development Canada. Only First Nations which are not covered by the Indian Act, or which have settlement or self-government agreements that exempt the estates of their citizens from being administered by the Indian Act, would have any interaction with the civil probate system in Ontario. A comprehensive study of the First Nations in Ontario and their estate administration scheme(s) is far outside the scope of this paper, though it remains an interesting topic for further exploration. I mention First Nations communities here only to highlight that, where applicable, First Nations communities do face increased and particularized barriers to accessing the probate application system that must not be forgotten in the development of any simplified probate application system. This is especially so as economic conditions, cultural values and norms regarding money and death, as well as familial or beneficiary distribution schemes, may dictate that, where a community or First Nation participates in the civil probate application scheme, the number of small value estates within a First Nations community is likely to be higher than average.
[110]  This is a question I heard several times from clients, the named or entitled estate representatives of particularly small value estates, once the magnitude and complexity of the job was explained to them. A feeling of moral obligation to the deceased was often cited to me as the ot