[1] “Probate” is the commonly understood term for the court-supervised process that establishes the legal authority of an estate representative to administer the estate. In Ontario, Rule 74 of the Rules of Civil Procedure adopts the specialized term Certificate of Appointment of Estate Trustee with or without a will (COA): Ontario, Rules of Civil Procedure, R.R.O. 1990, Reg. 94 [Rules of Civil Procedure]. However, the term “probate” continues to be used informally: see, for example, Chris Markou, “To Probate or Not to Probate? – That is the Question”, Your First Estate Administration, Ontario Bar Association (May 29, 2014), 2. One of the goals of this project is to improve accessibility to the probate process for small estates and an important aspect of accessibility is the use of plain language terminology. For this reason, the LCO generally uses the term “probate” throughout the Report. The term “COA” is used when referring to the specific procedures set out in Rule 74. In chapter VII the LCO makes recommendations designed to simplify probate for estate representatives who are not represented by a lawyer. One of these recommendations is to eliminate from the Rules convoluted and obscure terms such as “Certificate of Appointment of Estate Trustee with or without a will”.
[2] There are several terms used to describe the person acting on behalf of an estate. For the purpose of this Report, “estate representative” is a generic term referring to anyone who is representing an estate in fact, whether or not a COA has been issued. Once a COA has been issued, the representative is known as the “estate trustee”. An “executor” or “executrix” is an estate representative who has been named by the testator in his or her will. An executor may or may not file for probate and become an estate trustee.
[3] What is or should be considered a small estate for the purpose of a simplified process is a foundational issue in this project and is addressed in chapter III. We conclude that a small estate eligible for a small estates process should be worth no more than $50,000. The phrase “small estate” is used throughout this Report to refer to this definition.
[4] A $5,000 value limit applies in Ohio for filing for a Summary Release of Administration where the applicant is not the deceased’s spouse: Ohio Revised Code, §2113.031, online: Ohio Law and Rules, http://codes.ohio.gov/orc/2113.031. A $275,000 value limit applies in Oregon’s small estates procedure, consisting of not more than $75,000 in personal property and $200,000 in real property: Oregon Revised Statutes, §114.515, online: Oregon Laws.org, http://www.oregonlaws.org/ors/114.515.
[5] Probate is an archaic area of law which is arguably ripe for a comprehensive overhaul. According to a 2013 blog, probate reform has, to date, been “tentative and piecemeal”. The post suggests that probate should require no more than a few simple, user-friendly forms and it challenges reformers to redesign the process for efficiency and plain language without compromising the legal protection afforded to citizens: Lloyd Duhaime, Protecting the Dead From the Undead: Wills and Probate Law Reform, Duhaime.org, LawMag (November 11, 2013), online: http://www.duhaime.org/LawMag/LawArticle-1594/Protecting-the-Dead-From-the-Undead-Wills-and-Probate-Law-Reform.aspx.
[6] Trustee Act, R.S.O. 1990, c.T.23 [Trustee Act], s.47(1).
[7] Succession Law Reform Act, R.S.O. 1990, c.S.26 [SLRA], s.61.
[8] Christine M. Hakim, Balancing Accessibility and Procedural Protection in a Small Estates Probate Procedure in Ontario, Prepared for the Law Commission of Ontario (December 2014), 5, online: http://lco-cdo.org/en/Small-Estates-Commissioned-Paper-Hakim-2015.
[9] Duhaime, note 5.
[10] It is questionable how important the probate system is in fact in preventing fraud. During the consultations, consultees identified very few examples of fraud occurring as a result of the failure to obtain probate.
[11] Estate Administration Tax Act, 1998, S.O. 1998, c.34, Schedule [EATA], s.2.
[12] Interviews with several financial institutions. Also see Monteiro v. Toronto Dominion Bank, 2008 ONCA 137 [Monteiro], para. 55, online: http://www.canlii.org/en/on/onca/doc/2008/2008onca137/2008onca137.html?autocompleteStr=monteiro%20&autocompletePos=3.
[13] Law Commission of Ontario, Simplified Procedures for Small Estates: Consultation Paper (September 2014) [LCO, Small Estates Consultation Paper], 7-12. Online: http://lco-cdo.org/en/small-estates-consultation-paper.
[14] Written submission to the LCO from the Ontario Bar Association, Trusts and Estates Section (OBA) (April 2, 2015) [OBA 2015 submission].
[15] Other stakeholders also recognized that the role of probate is more complex and holds benefits for small estates in addition to the fees and paperwork involved.
[16] Questionnaire response from individual estate representative (January 20, 2015).
[17] This has changed with the introduction of the audit and verification regulation earlier this year. Now an Estate Information Return is filed with the Ministry of Finance: Information Required Under Section 4.1 of the Act, O. Reg. 310/14 [EATA Regulation].
[18] In Re Eurig Estate, the Supreme Court held that probate fees, the precursor to Ontario’s estate administration tax, were a tax rather than a fee specifically because they were intended to defray the costs of court administration in general and were not simply to offset the costs of granting probate: Re Eurig Estate, [1998] 2 S.C.R. 565 [Eurig], para.17.
[19] Norman F. Dacey, How to Avoid Probate (New York: Crown Publishers, 1965). Revised editions of Dacey’s book were published into the 1990s.
[20] See, for example, Tim Cestnick, “Where there’s a will: How to minimize probate fees”, Tax Matters
The Globe and Mail (August 1, 2011; updated September 6, 2012). The continued popularity of estate planning to avoid probate was confirmed in the LCO’s interviews with practitioners and representatives from financial institutions.
[21] Rules of Civil Procedure, note 1, Rules 75.01 – 75.05.
[22] Rules of Civil Procedure, note 1, Rule 74.
[23] Rules of Civil Procedure, note 1, Rule 74.12.
[24] Rules of Civil Procedure, note 1, Rule 74.14.
[25] LCO interview with Ministry of the Attorney General (MAG) representative (July 13, 2015).
[26] Rules of Civil Procedure, note 1, Rule 74.04.
[27] There are a number of different requirements under Rule 74 intended to respond to a range of circumstances. These can be bewildering for an unsophisticated estates representative. Only the core requirements are noted here.
[28] As of January 1, 2016, an amendment to Rule 74.04 will require that the applicant also file proof of death with the application: O. Reg. 193/15, ss.9(1).
[29] As of January 1, 2016, an amendment to Rule 74.05 will require that the applicant also file proof of death with the application: O.Reg. 193/15, s.10.
[30] EATA, note 11, s.3.
[31] EATA Regulation, note 17.
[32] The Rules provide for a passing of accounts but, in practice, beneficiaries often consent to waive this requirement, especially where the estate is small: Rules of Civil Procedure, note 1, Rules 74.16 – 74.18.
[33] EATA, note 11, s.2.
[34] Barry S. Corbin, “Estate Administration Tax – The Nightmare Begins”, (2011) 29:4 Deadbeat, Ontario Bar Association Trusts and Estates Section Newsletter; Barry Corbin, “Estate Administration Tax Audit & Verification – A New World” in LSUC, 15th Annual Estates & Trusts Summit (2012) [Corbin, New World]; Barry Corbin, “What’s Wrong with the Estate Administration Tax Act, 1998 and How to Fix It”, 17th Annual Estates and Trusts Summit, LSUC (November 3, 2014) [Corbin, What’s Wrong].
[35] Michael McKiernan, “The Going Rate: Canadian Lawyer’s 2014 Legal Fees Survey Shows Lawyers Split on Whether to Hike Fees” Canadian Lawyer (June 2014) 33, 37. The article notes that the maximum amount of legal fees for probate reported in Ontario was $4,745. The minimum was $1,356. Clearly, estate representatives of estates worth less than $1,356 or thereabouts are not seeking legal services.
[36] EATA, note 11, and EATA Regulation, note 17.
[37] LCO interview with urban estates practitioner (July 22, 2015).
[38] Examples taken from questionnaire responses from individual estate representatives (October 14, 2014 and January 16, 2015).
[39] McKiernan, note 35, 34.
[40] Probate fees for a $100,000 estate in selected Canadian provinces are as follows: Ontario – $1,000 (EATA, note 11, s.2), British Columbia – $850 (Probate Fee Act, S.B.C. 1999, c.4, s.2), Alberta – $275 (Surrogate Rules, Schedule 2, A.Reg. 130/95 as amended), Nova Scotia – $1002.65 (Probate Act, R.N.S. 2000, c.31, s.87), Quebec (non-notarial wills) – $105 (Québec, What To Do In the Event of Death, online: http://www4.gouv.qc.ca/EN/Portail/Citoyens/Evenements/deces/Pages/faire-verifier-testament-tribunal.aspx).
[41] John H. Martin, “Reconfiguring Estate Settlement” (2009) 94 Minnesota Law Review 42.
[42] Written submission to LCO from Blair L. Botsford, botsfordLAW (December 2, 2014) [Botsford Submission].
[43] LCO Focus Group No. 1, estate practitioners in the GTA.
[44] Rules of Civil Procedure, note 1, Rule 76 [Simplified Procedure].
[45] Several stakeholders noted the $25,000 jurisdictional limit of the Ontario Small Claims Court as influential in their opinion: Small Claims Court Jurisdiction, O. Reg. 626/00, as amended [Small Claims Court Regulation], under the Courts of Justice Act, R.S.O. 1990, c. C.43 [CJA].
[46] Questionnaire response from individual estate representative (December 17, 2014).
[47] Trial Lawyers Association of British Columbia v. British Columbia (Attorney General) 2014 SCC 59 [Trial Lawyers v. BC].
[48] Trial Lawyers v. BC, note 47, paras. 45-47.
[49] LCO, Small Estates Consultation Paper, note 13, 14.
[50] Wills, Estates and Succession Act, S.B.C. 2009, c.13 [WESA]. WESA came into force in March 2014.
[51] British Columbia Law Institute (BCLI), Interim Report on the Summary Administration of Small Estates, BCLI Report No. 40 (December 2005), online: http://www.bcli.org/sites/default/files/Summary_Administration_Small_Estates_Interim_Rep.pdf.
[52] The small estate declaration provisions were included in WESA and even though the government has chosen not to bring them into force at the moment, it has reserved the possibility of introducing a small estates declaration in the future: WESA, note 50, Part 6, Division 2, ss.109-120 [not in force].
[53] A contextual distinction between the probate system in B.C. and that in Ontario is that B.C. probate fees are only payable by estates worth more than $25,000. B.C. financial institutions will often use this figure as a basis for releasing assets without probate. According to one B.C. commentator, financial institutions may incorrectly assume that since estates worth less than $25,000 are not required to pay fees, they are not subject to probate at all. In Ontario, estate administration tax does not apply to estates worth less than $1,000, with the result that financial institutions are less likely to assume that probate is not required.
[54] See, for example, International Claim Association Law Committee (ICALC), Small Estate Administration 50-State Survey, 2008, online: www.claim.org/documents/lawsurvey.doc.
[55] Manitoba, The Court of Queen’s Bench Surrogate Practice Act, C.C.S.M. c.C290 [Manitoba Act], ss.47(1). The provision refers to the “total” value of the estate suggesting that a gross value is to be used.
[56] Saskatchewan Administration of Estates Act, S.S. 1998, c. A-4.1 [Saskatchewan Act], s.9. The amount is established by regulation: The Administration of Estates Regulations, c. A-4.1, Reg. 1 [Saskatchewan Regulation], s.8.2. The provision does not specify whether this amount is gross or net although s.8 of Reg. 1 provides that any loans related to real property are to be deducted in calculating value.
[57] Northwest Territories, Proposed Estate Administration Rules of the Supreme Court of the Northwest Territories, Draft for Discussion Only, Presented to the Law Society of the Northwest Territories (November 13, 2014) [NWT Proposed Rules and Forms], online: www.lawsociety.nt.ca/data/public/other/probate-rules-draft.pdf.
[58] NWT Proposed Rules and Forms, note 57, Form 3 (Draft Memorandum and Affidavit in Support of Application for Declaration of Small Estate).
[59] National Conference of Commissioners on Uniform State Laws, Uniform Probate Code (2010) [UPC].
[60] ICALC, note 54; Joseph N. Blumberg, “51 Flavors: A Survey of Small Estate Procedures Across the Country” (2014) 28 Probate & Property Magazine, online: http://www.jdsupra.com/legalnews/51-flavors-a-survey-of-small-estate-pro-08930/.
[61] Queensland Law Reform Commission, Administration of Estates of Deceased Persons: Report of the National Committee for Uniform Succession Laws to the Standing Committee of Attorneys General, Report 65 (2009), volume 3 [National Committee Report], online: http://www.qlrc.qld.gov.au/publications/QLRC%20Report%2065%20Volume%203.pdf; New South Wales Law Reform Commission (NSWLRC), Uniform Succession Laws: Administration of Estates of Deceased Persons, Report 124 (December 2009) [NSWLRC Report], online: http://www.lawreform.lawlink.nsw.gov.au/agdbasev7wr/lrc/documents/pdf/r124.pdf; Victorian Law Reform Commission (VLRC), Succession Laws Report (August 2013) [VLRC Report], online: http://www.lawreform.vic.gov.au/sites/default/files/Succession_Laws_final_report.pdf; South Australian Law Reform Institute (SALRI), Small Fry: Administration of Small Deceased Estates and Resolution of Minor Succession Disputes, Issues Paper 5 (January 2014) [SALRI Paper], 11-12, online: http://www.law.adelaide.edu.au/research/law-reform-institute/documents/small_fry_IP5_final.pdf.
[62] Where new estate assets are discovered after a COA is granted, the estate trustee is required within six months to deliver an updated statement of value to the Registrar: Estates Act, R.S.O. 1990, c.E.21 [Estates Act], s. 32.
[63] EATA, note 11.
[64] National Committee Report, note 61, 147 (150 per cent); VLRC Report, note 61, 207 (120 per cent).
[65] See, for example Saskatchewan and New York small estate procedures: Saskatchewan Act and Regulation, note 56; New York Code, Surrogate’s Court Procedure [NY Code], § 1304.
[66] A U.S. book counsels people on exactly how to get around small estate value limits by restructuring one’s estate: Mary Randolph, 8 Ways to Avoid Probate, 10th ed. (Berkeley, California:, NOLO, 2014).
[67] It is also important for another reason, that is, where there is no will, financial institutions are much more likely to refuse to waive probate. This is discussed further below.
[68] New Jersey N.J. Stat. 3B:10-3; La. C.C.P. Art. 3421 – 3443.
[69] Saskatchewan Act and Regulation, note 56; Iowa Code 633.356; Michigan MCLS 700.39830.
[70] British Columbia, Land Title Act, R.S.B.C. 1996, c. 250, s.266.
[71] Land Titles Act, R.S.O. 1990, c.L.5 [LTA], ss.120-127; see discussion below in chapter IV.C.10.
[72] Maryland, Estates and Trusts Code, para.5-601, also see North Carolina, NC Gen. Stat. 28A-25-1.
[73] In Washington the value limit is $100,000: Washington, RCW 11.62.010 [Washington Code]. In California it is $150,000: California, Probate Code, §13100 [California Code].
[74] For a discussion of the U.S. probate system as well as the author’s suggested reforms, see Martin, note 41.
[75] See the discussion on transferring real property in chapter VII.I.
[76] EATA, note 11, ss.2(6)
[77] Small Claims Court Regulation, note 45.
[78] Trustee Act, note 6, ss.47(1).
[79] Statistics provided by the Ministry of the Attorney General, Management Information Unit (July 11, 2013).
[80] LCO Focus Group No. 2, Central Estates Technical Table (CETT) court staff members, November 18, 2014 [Focus group of court staff].
[81] Statistics Canada, Deaths, estimates, by province and territory, online: http://www.statcan.gc.ca/tables-tableaux/sum-som/l01/cst01/demo07a-eng.htm.
[82] BCLI, note 51.
[83] Law Commission (U.K.), Intestacy and Family Provision Claims on Death, Law Comm No 331, 2011, 1.
[84] In conjunction with the U.K. Law Commission’s Intestacy project, HM Revenue & Customs analyzed empirical data around the value of net estates reported for probate. According to this study, in 2008 14% of probated estates had a value of less than £25,000 and 38% of probated estates had a value of less than £100,000 (of these, 33% were testate and 64% were intestate): Law Commission (U.K.), note 83, Appendix D, 241.
[85] Interview with rural practitioner (November 17, 2014).
[86] Interview with rural practitioner (October 25, 2013).
[87] Botsford submission, note 42.
[88] Anonymous questionnaire response (November 10, 2014).
[89] Not enough individuals participated in the consultation process to draw general conclusions about the experiences of estate representatives of small estates. However, the responses that the LCO did receive have been valuable as descriptive accounts of what is and is not working under the current probate system.
[90] The Income Tax Act provides that there must be proper authority for the Canada Revenue Agency (CRA) to release taxpayer information: Income Tax Act, R.S.C. 1985, c.1, 5th Supp., ss. 241(1). The “legal representative” of a deceased person for income tax purposes is the executor, administrator or liquidator (in Quebec) of the estate. Generally speaking, these representatives must be court-appointed: Canada Revenue Agency, Preparing Returns for Deceased Persons 2014, T4011(E) Rev. 14 [CRA Guide], 5-6, online: http://www.cra-arc.gc.ca/E/pub/tg/t4011/t4011-14e.pdf.
[91] Email from CRA representative (January 24, 2015).
[92] Criminal Code, R.S.C., 1985, c. C-46, ss.515(2)(d).
[93] Interview with MAG representative (March 31, 2014).
[94] Pension Benefits Act, R.S.O. 1990, c.P.8 [PBA], s.45. Also see, in relation to pre-retirement death benefits specifically, ss.48(7), 48(10).
[95] Ari Kaplan and Mitch Frazer, Pension Law, 2nd edition (Toronto: Irwin Law, 2013), 289-290.
[96] It seems that probate will not always be required by pension administrators even where there is no will. According to the Ontario Pension Board website, probate may not be required to legitimate a claim even where there is no will so long as the death benefit in issue is worth less than $30,000: OPB, Survivor pensions and death benefits, Security for the ones you love, online: http://www.opb.ca/portal/opb.portal?_nfpb=true&_pageLabel=Pensioners&path=/OPBPublicRepository/OPB/Public/Pensioners/SurvivorPensionsandDeathBenefits/en/Survivor%20Pensions%20and%20Death%20Benefits#b.
[97] Pension plans have a greater number of very small accounts since 2012 when immediate vesting of pension benefits was introduced into the PBA, note 94, as a result of Bill 236: Pension Benefits Amendment Act, 2010, c.P.9. The immediate vesting provisions came into force on July 1, 2012. Prior to these amendments, pension benefits did not vest until two years after the employee started employment. Now, pension plans may have many little accounts of accrued benefits for employees who have been employed for less than two years: Interview with pension plan representative (December 16, 2014).
[98] The Globe & Mail, “Power of Attorney for Property Just as Important as a Written Will: Scotiabank Estate Planning Experts” (April 04, 2014), online: http://www.theglobeandmail.com/globe-investor/news-sources/?mid=ccnm.20140404.11G014118-001.
[99] Rules of Civil Procedure, note 1, Rule 74.04.
[100] Estates Act, note 62, s.29.
[101] Rules of Civil Procedure, note 1, Rule 74.05.
[102] Estates Act, note 62, s.29; SLRA, note 7, ss.1(1), Part II, ss.44-49.
[103] The Globe & Mail, note 98.
[104] This practice is discussed below at chapter V.D.
[105] SLRA, note 7, Part II, ss.44-49.
[106] A codicil is: “[a] written supplement or addition to a will that may alter or revoke provisions in the existing will. Executed by the testator, with the same formalities of a will.” Law Society of Upper Canada, How to Prepare an Application for a Certificate of Appointment of Estate Trustee with a Will (updated November 2013), online: http://www.lsuc.on.ca/For-Lawyers/Manage-Your-Practice/Practice-Area/Trusts-and-Estates-Law/Wills/How-to-Prepare-an-Application-for-a-Certificate-of-Appointment-of-Estate-Trustee-with-a-Will/.
[107] Rules of Civil Procedure, note 1, Rule 74.04(1)(c), Form 74.8.
[108] Rules of Civil Procedure, note 1, Rule 74.04(1)(d), Form 74.9.
[109] Rules of Civil Procedure, note 1, Rule 74.04(1)(e), Form 74.10.
[110] Email from a government representative (August 5, 2014).
[111] Hull & Hull LLP, “Insolvent Estates – When There is Not Enough to Go Around”, Toronto Estate Law Blog (April 2, 2012), online: http://estatelaw.hullandhull.com/2012/04/articles/topics/estate-trust/insolvent-estates-when-there-is-not-enough-to-go-around/.
[112] Crown Administration of Estates Act, R.S.O. 1990, c.C.47 [CAEA], s.1.
[113] Ontario Office of the Public Guardian and Trustee (OPGT), Estates Administration: The Role of the Public Guardian and Trustee (2012), 2, online: http://www.attorneygeneral.jus.gov.on.ca/english/family/pgt/estatesadmin.pdf.
[114] Rules of Civil Procedure, note 1, Rule 74.04(4) – (6), Rule 74.05(3)-(4).
[115] Children’s Law Reform Act, R.S.O. 1990, c. C.12 [CLRA], s.51.
[116] The exception here would be if the OPGT had applied to assume administration of the estate under CAEA, note 112, s.1. It should be noted that the OPGT’s dual roles as a guardian protecting the interests of incapable beneficiaries and as estate trustee of last resort are legislatively distinct and kept completely separate as a matter of public administration.
[117] Written Submission to the LCO from the Office of the Children’s Lawyer (OCL) (February 2, 2105) and email (February 24, 2015) [OCL Submission].
[118] Rules of Civil Procedure, note 1, Rule 74.05(1)(d), Estates Act, note 62, s.35.
[119] Rules of Civil Procedure, note 1, Rule 74.04(1)(h), Estates Act, note 62, s.35.
[120] Estates Act, note 62, s.6. The provision that exempts Commonwealth residents from posting a bond is widely considered to be anachronistic and in need of reform. For example, under this provision, a deceased person’s only daughter would have to post a bond with her probate application if she lives in Boston but she would be exempt from doing so if she lives in Tonga.
[121] Estates Act, note 62, s.37.
[122] Rules of Civil Procedure, note 1, Rule 74.11(1)(d).
[123] OBA, Modernizing Requirements for Bonding of Estate Trustees, Submitted to the Ministry of the Attorney General, April 2012 [OBA 2012 Submission], 2, online: http://www.oba.org/CMSPages/GetFile.aspx?guid=e90ef4b5-d3a8-45cf-98ac-90f0c5b7e2bb.
[124] Mr. Justice Brown laid out several factors to be considered in a motion to waive the bond requirement in Re Henderson Estate (2008), 45 E.T.R. (3d) 189 (Ont. S.J.).
[125] In 2009, approximately 75% of waiver requests were successful on first application: Natalia R. Angelini, The Tricky Business of Administration Bonds, Hull & Hull LLP Breakfast Series (June 2009), 1.
[126] Rules of Civil Procedure, note 1, Rule 74.04(2), Rule 74.05(2).
[127] Rules of Civil Procedure, note 1, Rule 74.04(7), Rule 74.05(5).
[128] Rules of Civil Procedure, note 1, Rule 74.04(4),(5),(6) and Rule 74.05 (3),(4).
[129] Hakim, note 8, 84-85.
[130] The applicant must choose the correct application form among several possibilities depending on whether there is a will or not, whether the applicant is an individual or corporation and other contingencies. See, for example, Rules of Civil Procedure, note 1, forms 74.4, 74.5, 74.14, 74.15.
[131] A valuation of individual assets as well as additional information is required to complete the new Estate Information Return for the Ministry of Finance: EATA Regulation, note 17; Ontario Ministry of Finance, Guide to Estate Information Return, 9955E_Guide (2015/01) [EIR Guide], online: http://www.forms.ssb.gov.on.ca/mbs/ssb/forms/ssbforms.nsf/GetFileAttach/9955E~2/$File/9955E_Guide.pdf. This is discussed further below in chapter VII.H.
[132] Rules of Civil Procedure, note 1, Rule 74.13, EATA, note 11.
[133] Rules of Civil Procedure, note 1, Rule 74.13(2). Also see Estates Act, note 62, s.32.
[134] Hakim, note 8, 11-12.
[135] Estates Act, note 62, ss.32(2).
[136] EATA Regulation, note 17, s.4.1.
[137] The probate fee was authorized by the Administration of Justice Act, R.S.O. 1990, c. A.6, s.5, and the amount set by O. Reg. 293/92.
[138] Eurig, note 18.
[139] Eurig, note 18, para. 20.
[140] EATA, note 11.
[141] Ontario Ministry of Finance, Estates Information Return (EIR), online link at: http://www.fin.gov.on.ca/en/tax/eat/.
[142] EIR Guide, note 131.
[143] Email from an estates practitioner (February 3, 2015).
[144] Corbin, New World, note 34; Corbin, What’s Wrong, note 34.
[145] Teranet, Land Registration System in Ontario, online: http://www.teranet.ca/land-registration-system-ontario?popup=1.
[146] This is not an express requirement in the Act but is required in the form prescribed by regulation: LTA, note 71, ss.120-127; Transmission Application (for Registration of Executor or Administrator as Owner), O. Reg. 430/11, s.12, online: http://files.ontario.ca/transmission_application_for_registration_of_executor_or_administrator_as_owner_under_sections_120_121_122_or_127_of_the_land_titles_act.pdf; Rose H. McConnell, Document Registration Guide, 12th ed. (CCH, 2011), 495.
[147] McConnell, note 146, 509-510. There is also a first-dealing policy as discussed in the LCO’s Small Estates Consultation Paper, note 13, 24.
[148] Hakim, note 8, 26.
[149] Email from government representative, note 110.
[150] See for example, 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; 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); Law Commission of Ontario, Increasing Access to Family Justice Through Comprehensive Entry Points and Inclusivity (Toronto: February 2013) [LCO, Increasing Access], 40-49; Hakim, note 8, 25-32.
[151] Questionnaire response from individual estate representative (November 11, 2014).
[152] LCO Focus Group No. 3 of individual estate representatives (November 25, 2014).
[153] Interviews with estates practitioners and court staff.
[154] Focus group of court staff, note 80.
[155] Interview with court staff member (October 31, 2013).
[156] O. Reg. 484/94.
[157] Estates Act, note 62; Trustee Act, note 6; Estate Administration Act, R.S.O. 1990, c.E.22 [EAA].
[158] Markou, note 1.
[159] The Law Society of Upper Canada advises that a COA is “typically necessary … where: the estate is large and the assets are not (i) readily transferable, or (ii) transferable outside probate; there is real property; or a financial institution requires a certificate.” [emphasis added]: LSUC, “How to Prepare an Application for a Certificate of Appointment of Estate Trustee with a Will”, Practice Area Resources [LSUC, “COA w/ will”], online: http://www.lsuc.on.ca/For-Lawyers/Manage-Your-Practice/Practice-Area/Trusts-and-Estates-Law/Wills/How-to-Prepare-an-Application-for-a-Certificate-of-Appointment-of-Estate-Trustee-with-a-Will/#s2.
[160] Estates Act, note 62, s.7. See also Ontario, Ministry of the Attorney General, Frequently Asked Questions about Estates [MAG, FAQs], online: http://www.attorneygeneral.jus.gov.on.ca/english/estates/estates-FAQ.asp#s1.
[161] For example, where there is a will, the following documents and items must be filed with the Estate Registrar of the Ontario Superior Court of Justice: the original will; the original codicil(s), if any; Affidavit of Execution of Will (Form 74.8); Affidavit(s) of Execution of Codicil(s), if one or more codicils exist (Form 74.8); Application for Certificate of Appointment of Estate Trustee with a Will (Form 74.4); Notice of an Application for a Certificate of Appointment of Estate Trustee with a Will (Form 74.7); Affidavit of Service of Notice (Form 74.6) and Certificate of Appointment of Estate Trustee with a Will (Form 74.13).
[162] Court forms are located online: http://www.ontariocourtforms.on.ca/english/civil/.
[163] Ontario, Ministry of the Attorney General, Avoid Common Errors in Applying for a Certificate of Appointment of Estate Trustee. Online: http://www.attorneygeneral.jus.gov.on.ca/english/estates/avoiding_common_errors.pdf.
[164] Law Society Upper Canada, How-To Briefs, online: http://www.lsuc.on.ca/with.aspx?id=2147490949.
[165] Community Legal Education Ontario (CLEO), online: http://www.cleo.on.ca.
[166] CLEO, Your Legal Rights, online: http://yourlegalrights.on.ca/legal-topic/wills-and-estates/death-and-inheritances.
[167] LegalLine, online: http://legalline.ca/legal_answers/ontario/wills_and_estates/wills/probating_a_will.html.
[168] Law Society of Upper Canada, Your Law: Wills & Estates, online: http://www.lsuc.on.ca/with.aspx?id=2147483838.
[169] Telephone conversation with Pro Bono Law Ontario (PBLO), July 2015.
[170] PBLO, Law Help Ontario, online: https://www.lawhelpontario.org/lawsuits-disputes/superior-court/how-to-guides-superior/.
[171] Service Ontario, What To Do When Someone Dies, online: https://www.ontario.ca/government/what-do-when-someone-dies.
[172] MAG, FAQs, note 160.
[173] British Columbia, Ministry of Justice, Supreme Court Civil Rules – Probate Forms [B.C. Probate Forms], online: http://www.ag.gov.bc.ca/courts/other/supreme/2010SupRules/info/index_probate.htm.
[174] See, for example, forms P3 and P4, Affidavit of Applicant for Grant of Probate or Grant of Administration with Will Annexed (short or long): B.C. Probate Forms, note 173.
[175] British Columbia, Ministry of Justice, Supreme Court Civil and Family Forms “How To” Guide, online: http://www.ag.gov.bc.ca/courts/other/supreme/2010SupRules/HowToForms.pdf.
[176] British Columbia, Ministry of Justice, About Wills and Estates, online: http://www.ag.gov.bc.ca/courts/other/wills_estates.htm.
[177] ClickLaw, I’m applying for probate. Where can I find the forms required?, online: http://www.clicklaw.bc.ca/question/commonquestion/1112.
[178] See e.g. British Columbia, Ministry of Justice, Wills, Estates and Succession Act and Probate Rules: Questions and Answers [WESA Q&A], 3, online: http://www.ag.gov.bc.ca/legislation/shareddocs/wesa/qa.pdf.
[179] Saskatchewan Act, note 56, ss.9(1); Saskatchewan Regulation, note 56, s.8.2.
[180] Courts of Saskatchewan, Court of Queen’s Bench, Application for Probate, online: http://www.sasklawcourts.ca/index.php/home/court-of-queen-s-bench/wills-and-estates/application-for-probate.
[181] Public Legal Education Association of Saskatchewan (PLEA), Wills and Estates, online: http://www.plea.org/legal_resources/?a=377&searchTxt=&cat=28&pcat=4.
[182] Interview with urban estates practitioner (September 24, 2013).
[183] LCO Focus Group No. 4 of Kingston estate practitioners (November 27, 2014).
[184] Questionnaire response from individual estate representative (January 16, 2015).
[185] Questionnaire response from estates practitioner (December 2, 2014).
[186] Botsford submission, note 42.
[187] Monteiro, note 12.
[188] Bank Act, S.C. 1991, c.46, s.460 [Bank Act].
[189] Interview with court staff member (December 11, 2013).
[190] Credit Unions and Caisses Populaires Act, 1994, S.O. 1994, c.11, s. 42 [CUCPA].
[191] Written submission to the LCO from Central 1 Credit Union (December 5, 2014) [Central 1 Submission].
[192] Central 1 Submission, note 191.
[193] Insurance Act, R.S.O. 1990, c.I.8, s.203 [Insurance Act]. The section also requires that the insurer receive evidence of the age of the person whose life is insured as well as the name and age of any beneficiary.
[194] Manulife Tax Topics, Probate Overview (updated October 2014), online: https://repsourcepublic.manulife.com/wps/wcm/connect/dbe0f780433c501db9e5ff319e0f5575/ins_tepg_taxtopicprobate.pdf?MOD=AJPERES&CACHEID=dbe0f780433c501db9e5ff319e0f5575.
[195] In Rozon v. Transamerica Life Insurance Co. of Canada, the insurer asserted that “sufficient evidence” in a case of payment to a personal representative who was designated under a will required that the will be probated by the Court. The Court held that there was nothing in the Insurance Act which should lead a court to interpret “sufficient evidence” to mean that a will must be probated. The decision gives no indication as to the evidence that the personal representative had provided (and the Court had accepted as sufficient) in lieu of probate. However, it seems likely this was the unprobated will: Rozon v. Transamerica Life Insurance Co. of Canada, [1999] O.J. No. 5599; supplementary reasons [1999] O.J. No. 5600; aff’d by [1999] O.J. No. 4538 (C.A.).
[196] Insurance Act, note 193, s.207.
[197] Written submission to the LCO from the Canadian Life and Health Insurance Association (CLHIA) (December 16, 2014) [CLHIA Submission].
[198] Monteiro, note 12.
[199] Monteiro, note 12, para. 55.
[200] Bank of Canada Business Rules, Canada Savings Bonds, online:
http://www.csb.gc.ca/14700/transfer-or-redeem-from-a-deceased-owner-all-provinces-except-quebec/.
[201] Written submission to the LCO from Martin Schulz, November 12, 2015 [Schulz submission].
[202] Interview with representative of a financial institution (November 26, 2014).
[203] Bank Act, note 188, ss.244(d).
[204] Bank Act, note 188, ss.157(1)(c),(d).
[205] For example, credit unions are subject to CUCPA, note 190, s.143.
[206] Tournier v. National Provincial and Union Bank of England, [1924] 1 K.B. 461 (C.A.).
[207] Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 [PIPEDA].
[208] British Columbia, Supreme Court Civil Rules, Part 25 – Estates [B.C. Probate Rules], Rule 25-4(1), Form 18, online: http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/168_2009_00.
[209] Alberta Law Reform Institute (ALRI), Estate Administration, Final Report 102 (August 2013), 68-71, online: http://www.alri.ualberta.ca/docs/FR_102_estate_administration.pdf.
[210] Income Tax Act, note 90, ss.241(5).
[211] It is interesting to consider the statutory history of ss.241(5) of the Income Tax Act, note 90. Currently, this section provides that taxpayer information may be disclosed with the consent of the taxpayer. However, an earlier version allowed for the release of taxpayer information to the taxpayer or a legal representative or agent: Income Tax Act, S.C. 1970-71-72, c. 63, ss.241(5). A decision interpreting this earlier version found that “legal representative” included a widow who had not gone to the expense of obtaining a COA: Grewal v. Gauthier, [1993] O.J. No. 398, Master Garfield. We have not found any commentary on why the reference to legal representatives was removed from ss.241(5).
[212] CRA Guide, note 90, 5.
[213] Canada Revenue Agency, Legal Representative, online: http://www.cra-arc.gc.ca/tx/ndvdls/lf-vnts/dth/rprsnttv-eng.html; Canada Revenue Agency, What to do Following a Death (RC4111), online: http://www.cra-arc.gc.ca/E/pub/tg/rc4111/rc4111-e.html.
[214] Financial institutions will often use a form in assessing an application for a probate waiver. In England, Barclays PLC (Equiniti Financial Services) uses a Small Estate Declaration and Indemnity form which applies where a next of kin has holdings in the bank that do not exceed £10,000 (CAN$20,500 at time of writing) in each company, online: http://www.shareview.co.uk/4/Info/Portfolio/Default/en/Home/Shareholders/documents/smallestatesformbarclays.pdf. This waiver form is available even where there is no will. The form asks for a declaration and a copy of the Death Certificate but no other proof of authority is necessary. According to a financial institution stakeholder, similar forms are used by some Ontario financial institutions (October 10, 2013).
[215] Recall that estates worth less than $1,000 are exempt from payment of the estate administration tax: EATA, note 11, ss.2(2).
[216] There are other exceptions. For example, according to one financial institution stakeholder, insurance companies may agree to waive probate in intestacy where the estate representative provides a statutory declaration and indemnity/release, the estate has no debts and there are no other survivors.
[217] Interview with representatives from financial institutions (October 24, 2014, November 4, 2014, November 26, 2014).
[218] Although financial institutions usually require indemnities in order to release assets without probate, many stakeholders acknowledged that these have little practical effect. By the time a new will is discovered or fraud occurs, the money is often long gone or the cost of litigation is not worth the chance of recovery.
[219] For example, a 30 day waiting period was included in previous versions of the CUCPA (but no longer appears in the current version of the legislation): CUCPA, note 190, historical version for the period January 1, 2007 – April 30, 2007), s.43.
[220] Interview with representative of an institutional beneficiary (November 5, 2014).
[221] Schulz Submission, note 201.
[222] Interview with estates practitioner (December 3, 2013).
[223] Email from rural practitioner (February 3, 2015).
[224] Under Part V of the SLRA, note 7, the dependent of a deceased may make a claim against the estate for support where adequate provision was not otherwise made for him or her. A dependent is generally a spouse, parent, child, or brother or sister of the deceased, to whom, immediately before death, the deceased was providing, or had a legal obligation to provide support.
[225] OCL Submission, note 117.
[226] CLHIA Submission, note 197.
[227] Written submission to the LCO from the Canadian Bankers Association (CBA) (January 9, 2015) [CBA Submission].
[228] Interview with estates practitioner (October 23, 2013).
[229] Hakim, note 8, 44.
[230] Lord Devlin, Talk for the BBC given in 1970, quoted in Colleen M. Hanycz, “More Access to Less Justice: Efficiency, Proportionality and Costs in Canadian Civil Justice Reform” (2008) 27 C.J.Q. 98, 98.
[231] Mr. Justice Brown, “A View from the Bench” in Melanie A. Yach, ed., Key Developments in Estates and Trust Law, (Aurora: Canada Law Book, 2010).
[232] Interview with MAG representative, note 25.
[233] Hanycz, note 230, 103. Lord Woolf was appointed by the Lord Chancellor in 1994 to review England’s rules of civil procedure with a view to improving access to justice, reducing the cost of litigation, and removing unnecessary complexity. His final report, released in 1996, has been influential in Ontario reform efforts: The Right Honourable Lord Woolf, Access to Justice: Final Report to the Lord Chancellor on the civil justice system in England and Wales (July, 1996), online: http://webarchive.nationalarchives.gov.uk/+/http://www.dca.gov.uk/civil/final/contents.htm.
[234] Frans F. Slatter, Parliament and Administrative Agencies, A Study Paper prepared for the Law Reform Commission of Canada (Minister of Supply and Services Canada, 1982), 15, online: http://www.lareau-legal.ca/Parliament.pdf.
[235] Justin W. de Vries & Angélique Moss, “Brave New World! The Cost of Proportionality in Will Challenges and Guardianship Disputes: Discovery, Summary Judgment and the Courts’ Discretion in Fixing Costs” (2010), online: http://devrieslitigation.com/legal-resources/legal-papers/brave-new-world-cost-proportionality-will-challenges-guardianship-disputes-discovery-summary-judgment-courts-discretion-fixing-costs/.
[236] CJA, note 45, ss.22, 23 and Rules of the Small Claims Court, O. Reg. 258/98 [Small Claims Court Rules].
[237] Small Claims Court Regulation, note 45, s.1.
[238] CJA, note 45, s.26.
[239] See Hakim, note 8, 38-41 for a fuller discussion of the small claims court procedure.
[240] Rules of Civil Procedure, note 1, Rule 76.02.
[241] “The procedural changes that the simplified procedure calls for have facilitated greater access to the legal system through its foundational principle of proportionality.” Lesly Joseph, “Rule 76 – Costs, Benefits and Implications” (2008) 34 Advoc. Q. 88, 91; Hakim, note 8, 41-46.
[242] More recently in Ontario, legal representation by lawyers or paralegals seems to be encouraged in small claims court: Shelley McGill, “Small Claims Court Identity Crisis: A Review of Recent Reform Measures” (2010) 49 C.B.L.J. 213, 230-231.
[243] As quoted by Joseph, note 241, 106.
[244] Hakim, note 8, 40, 44-45.
[245] Justice Warren K. Winkler, “Civil Justice Reform – The Toronto Experience” from The Warren Winkler Lectures on Civil Justice Reform (2007-2008) 39 Ottawa L.R. 99, 106.
[246] CLRA, note 115, ss.47 – 58.
[247] CLRA, note 115, ss.51.
[248] These are discussed in chapter VII.A.2 below.
[249] Ontario, Ministry of the Attorney General, Office of the Children’s Lawyer, Guardianship of Property of Minor Children, online: http://www.attorneygeneral.jus.gov.on.ca/english/family/ocl/propguard.asp.
[250] Bank of Canada, Unclaimed Balances, How to Claim, online: http://www.bankofcanada.ca/unclaimed-balances/how-to-claim/.
[251] Missing Money, online: http://www.missingmoney.com/Main/Index.cfm.
[252] Missing Money, Frequently Asked Questions, online: http://www.missingmoney.com/GeneralHelp/FAQ.cfm#Claim0a.
[253] Uniform Law Conference of Canada, Uniform Unclaimed Intangible Property Act [UUIPA], s.17, online: http://www.ulcc.ca/en/uniform-acts-new-order/current-uniform-acts/545-josetta-1-en-gb/uniform-actsa/unclaimed-intangible-property-act/1114-unclaimed-intangible-property-act.
[254] There does not appear to be commentary or case law interpreting this provision.
[255] Ontario, Ministry of the Attorney General, Proposed Unclaimed Property Program, online: http://www.attorneygeneral.jus.gov.on.ca/english/about/uipp_consultation.asp.
[256] Jeremy McDonald, “Unclaimed assets of $5B await Canadians, expert says”, CBC News (July 9, 2015), online: http://www.cbc.ca/m/touch/news/story/1.3140196.
[257] Small estate procedures have been common in the United States since 1914 when an early version was enacted in New Jersey. In 1961, the Bennett Commission in New York recommended a small estate procedure for intestacies having personal property of a gross value of $3,000 or less. A surviving spouse, child, grandchild, parent or sibling could apply to be a voluntary administrator by swearing an affidavit containing a list of beneficiaries, assets and known liabilities: New York (State) Temporary State Commission, Report of the Temporary State Commission on the Modernization, Revision and Simplification of the Law of Estates to the Governor and the Legislature [Bennett Commission Report]. That recommendation eventually became the New York Surrogate Court’s Small Estate Affidavit Procedure [SEAP], online: http://www.nycourthelp.gov/diy/smallestate.html. SEAP is discussed in chapter VII.K below.
[258] Law Reform Commission of Nova Scotia, Probate Reform in Nova Scotia, March 1999, 40-42, online: http://www.lawreform.ns.ca/Downloads/Probate_FIN.pdf/.
[259] ALRI, note 209, 73. ALRI did recommend that personal representatives who choose to administer an estate informally should, nonetheless, have a statutory duty to provide notice to beneficiaries, ALRI, 51. This provision was enacted with Alberta’s new Estate Administration Act, S.A., 2014, c.E-12.5, s.10.
[260] See chapter III for a discussion of B.C.’s decision to define eligibility for its procedure in relation to simplicity rather than monetary value.
[261] British Columbia, Ministry of Justice, The Wills, Estates and Succession Act Explained, Part 6 Administration of Estates [BC, WESA Explained], online: http://www.ag.gov.bc.ca/legislation/shareddocs/wesa/Part6.pdf.
[262] Another way of dealing with small estates is to retain the full probate process but provide court staff assistance to small estate representatives in navigating the process. This kind of assistance was once available for very small estates in Ontario and certain other provinces but was repealed: Estates Act, note 62, s.51 [repealed]. However, assisted grant procedures do continue to be available to laypeople in certain Australian states. See, for example, Administration and Probate Act 1958 (Vic) s.71.
[263] The LCO received numerous other suggestions for reform during the consultation period. For example, one stakeholder raised the idea of reversing the statutory assumption in the SLRA, note 7. Instead of estate representatives of intestacies being required to establish legal authority through the probate system, legal authority would be assumed absent any reason to doubt it. This would give financial institutions more comfort in dealing with family members who meet the statutory criteria to act as estate representative. The LCO is concerned that this would effectively take intestacies out of the probate system and would provide less protection to the beneficiaries.
[264] National Committee Report, note 61, 158-163. Variations of informal administration have been adopted in Australia and England. For example, Australia’s federal Banking Act provides that financial institutions may pay up to AU$15,000 (just over CAN$14,000 at the time of writing) of the deceased’s assets for the deceased’s funeral expenses, executor fees or to anyone else who it believes is entitled to the amount. There is no need to produce a will or grant of probate for this purpose and the financial institution is statutorily protected in respect of these payments: Banking Act 1959 (Cth), s.69AA(1); Contrast Canada’s Bank Act, note 188, s.460. Australian law reform bodies continue to recommend informal administration provisions for certain purposes: National Committee Report, note 61, 165-167; VLRC Report, note 61, 200. The willingness of some Australian jurisdictions to embrace informal administration might indicate a lack of concern for the protection of beneficiaries. On the other hand, Australia has in place more specific statutory provisions designed to deter estate fraud that do not exist in Ontario. See, for example, Administration and Probate Act 1958 (Vic), s.66(1).
[265] There is a third possibility, universal succession, provided for in the Uniform Probate Code (UPC), which allows for estate assets to pass directly into the hands of the beneficiaries with their consent and where they assume responsibilities for estate liabilities: UPC, note 59, §3-312-3-322. There is no court supervision. On receiving a complete application, the registrar will issue a Statement of Universal Succession which establishes the successor’s title to the assets. There is no maximum value limit, and therefore this is not a true small estates procedure. In any event, it does not appear to have been adopted by any states.
[266] UPC, note 59, §3-1201-1202.
[267] There are various versions of this model, some of which require that the affidavit be filed with the court and others which entail no court involvement at all. For example, in Arizona’s affidavit procedure, court filing is required where the estate includes real property but not where it includes personal property: Ariz Rev Stat s.14-3971. Even among procedures which require court filing, some require closer court scrutiny than others. In some procedures, the registrar merely reviews the affidavit for completeness. In others, the court issues a formal authorization of voluntary administration. See New York’s SEAP, note 257.
[268] In Texas, the maximum value is $50,000, exclusive of homestead and other exempt property: Texas, Estates Code, ch 205 [Texas Code], §205.001(3). In California, it is $150,000, exclusive of property not located in California: California Code, note 73, §13100. In Washington, it is $100,000, calculated on the value of estate for probate purposes: Washington Code, note 73, §11.62.010(2)(c). The maximum for Oregon’s affidavit procedure is $275,000 where not more than $200,000 of that amount can be real property and no more than $75,000 can be personal property: Oregon Code, note 4, s.114.515.
[269] Texas Code, note 268.
[270] UPC, note 59, §3-1201; California Code, note 73, §13100; Texas Code, note 268, §205.001(1); Washington Code, note 73, §11.62.010(1).
[271] An applicant entitled to administer the estate may fill out an Affidavit of Voluntary Administration, including a list of individuals with an interest in the estate, a list of estate assets and a list of estate liabilities. The registry office then sends notices to the beneficiaries. There is no special protection for minors or incapable beneficiaries.
Once approved by the court, a Certificate of Voluntary Administration is issued and the Act provides a statutory release for institutions releasing assets pursuant to a Certificate. However, this procedure does not result in a grant and the applicant’s authority is limited to the assets listed in the form: NY Code, note 65, Art 13.
[272] In one county, over 900 small estates applications a year were received. According to a rough estimate, over half of these were for very small estates worth less than $10,000. Also, over half were filed by unrepresented individuals. In another county, roughly 1,500 small estate applications were received and, again, over half were filed by unrepresented individuals. The process is used more often in the case of intestacies. Interviews with New York court representatives (July 16, 2014, July 25, 2014 and August 5, 2014).
[273] In British Columbia, BCLI recommended a small estates process very similar to an affidavit procedure: BCLI, note 51. More recently, the South Australian Law Reform Institute (SALRI) prepared an Issues Paper suggesting that a similar collection by affidavit procedure be considered for South Australia. In a departure from the BCLI recommendation, SALRI suggested that a collection by affidavit procedure might be filed in an online publicly accessible registry similar to those used for commercial licensing: SALRI Report, note 61, 38-42.
[274] Although affidavit procedures are popular in the United States, there is little discussion in the literature of the risk of fraud involved. However, the possibility of fraud was discussed in the 2009 debates to raise the maximum value of California’s small estate procedures. The Executive Committee of the Trusts & Estates section of the State Bar of California (TEXCOM) submitted that its members were not aware of even a single incidence of fraud associated with the small estates procedure: Trusts and Estates Section, The State Bar Association of California, Update of Provisions of the Probate Code Pertaining to the Collection or Transfer of Small Estates Without Formal Probate Administration – Legislative Proposal, The State Bar of California (2009). However, the different probate tradition in the U.S. and Canada makes it difficult to compare experiences.
[275] Public Trustee Act, RSNWT 1988, c.P-19, ss.26(1) and 25(3); Public Trustee Act, S.A. 2004, P-44.1, ss.13(1), 16(10), Saskatchewan Act, note 56, ss.7(1), Public Trustee Act, R.S.N.S. 1989, c. 379 s.16. Australian states also have election procedures that require the trustee or administrator to file notice with the court. In Victoria, there is also a deemed grant procedure in which the administrator is statutorily authorized to assume administration of the estate directly, without notice to the court. See the discussion in the LCO’s Small Estates Consultation Paper, note 13, 37-38.
[276] Saskatchewan Act, note 56, s.9; Saskatchewan Regulation, note 56, s.8.2.
[277] Interview with Saskatchewan court representative (July 23, 2014).
[278] Interview with and email from Saskatchewan court representative (July 23, 2014 and July 17, 2014). Saskatchewan also has a more specialized procedure for estates containing real estate worth less than $15,000. In this provision, the registrar’s office will assist the applicant in completing the materials necessary to obtain a grant: Saskatchewan Act, note 56, ss. 7; Saskatchewan Regulation, note 56. Apparently this procedure was intended to deal with small value property interests such as mineral rights. However, in practice it is almost obsolete.
[279] Manitoba Act, note 55, s.47.
[280] NWT Proposed Rules and Forms, note 57, Form 4.
[281] We also reviewed other options for simplified court-supervised small estates processes. For example, in the United States, summary administration, adopted by several states in varying forms, allows family members with statutory allowances to directly collect their statutory allowances where the value of the estate does not exceed the amount of those allowances: UPC, §3-1203, 3-1204. The statutory entitlements are set out at §2-402 (homestead allowance), §2-403 (exempt property) and §2-404 (family allowance). This process is too limited to provide a model for a small estates process that applies to the full range of assets. Another approach is to expedite the issuance of a full grant by reducing the requirements and formalities, although maintaining the oversight of the court: SALRI Paper, note 61, 27-28. SALRI did not discuss what effect an expedited grant would have on later discovered assets. If the grant encompassed all estate assets (as is usual), there would be a significant temptation for applicants to falsely under-report the value of an estate in order to fit within the simplified process.
[282] Written submission to the LCO by Dan McAran (October 30, 2014) [McAran Submission].
[283] Written submission to the LCO by the Surety Association of Canada (SAC) (December 2014) [SAC 2014 Submission].
[284] As discussed above, this balance is also reflected in other legal processes such as B.C.’s new forms under WESA, note 50, Ontario’s Small Claims Court Rules, note 236, and the Simplified Procedure, note 44.
[285] Estates Act, note 62, ss.32(2).
[286] Focus group of court staff, note 80.
[287] Estates Act, note 62, ss.32(1).
[288] EATA, note 11.
[289] Saskatchewan Regulation, note 56, Form 16-36 (Application in Small Estates Memorandum to the Judge).
[290] Manitoba Court of Queen’s Bench Rules, [Manitoba Rules], Rule 74.15, Form 74BB (Request for Order Under Section 47 of the Court of Queen’s Bench Surrogate Practice Act).
[291] NWT Proposed Rules and Forms, note 57, Form 2 (Application for Declaration of Small Estate) [not in force] and Form 3 (Memorandum and Affidavit in Support of Application for Declaration of Small Estate) [not in force].
[292] The LCO’s recommendations address the key elements of a small estates process and application form. However, there will be more detailed issues to consider if the government implements these recommendations. For example, there was discussion in consultations about the degree of detail that should be required in listing the estate assets in a small estates application form and how the estate administration tax should be remitted where no estates information return is required.
[293] See, for example, Washington Code, note 73, 9A.72.085.
[294] See chapter III.C above.
[295] Interview with estates practitioner (February 25, 2015).
[296] McGill, note 242, 237.
[297] Hakim recommends this simplified form of notice for estates of any value as a way of reducing the complexity and the appearance of complexity of the current probate process: Hakim, note 8, 87-88. For the moment, the LCO suggests that it be adopted as part of a small estates process. If successful, it might be implemented in the regular probate stream as well.
[298] Ontario Law Reform Commission (OLRC), Report on Administration of Estates of Deceased Persons (Toronto: 1991), 222-229, online: https://archive.org/details/reportonadminist00onta.
[299] OLRC, note 298, 227.
[300] Where a bond is required, the OLRC recommended that its amount should generally be equal to the value of the estate (rather than double that value): OLRC, note 298, 229.
[301] OBA 2012 Submission, note 123.
[302] OBA 2012 Submission, note 123, 4.
[303] BC, WESA Explained, note 261, s. 128.
[304] Surety Association of Canada, Protecting Estates, Estate Beneficiaries & Creditors, Bonding of Estate Trustees, submitted to Ministry of Attorney General, October 2012 [SAC 2012 Submission], 2.
[305] SAC agreed with the OLRC and OBA suggestions that the amount of a bond, where required, should be reduced to the value of the estate: SAC 2012 Submission, note 304, 19.
[306] SAC 2014 Submission, note 283.
[307] Missouri, R.S.Mo. 473.097.
[308] Estates Act, note 62, s.6.
[309] Estates Act, note 62, s.5. There are some narrow exceptions to this rule as illustrated by Re Armstrong Estate, 2010 ONSC 2275, interpreting s. 29.
[310] CAEA, note 112, s.1.
[311] Rules of Civil Procedure, note 1, Rules 75.03, 75.04.
[312] Trustee Act, note 6, s.47.
[313] Trustee Act, note 6, s.47.
[314] EATA Regulation, note 17.
[315] Vince De Angelis, Estate Administration Tax Act Requirements in Effect on January 1, 2015 (January 20, 2015), online: http://www.oba.org/Sections/Trusts-and-Estates-Law/Articles/Articles-2015/January-2015/Estate-Administration-Tax-Act-Requirements-in-Effe.
[316] McAran Submission, note 282.
[317] Teranet, Land Registration in Ontario. Online: http://www.teranet.ca/land-registration-system-ontario?popup=1.
[318] Marguerite E. Moore, Title Searching & Conveyancing in Ontario, 6th ed. (Lexis Nexis, 2010), 635-636.
[319] McConnell, note 146, 496-498.
[320] Moore, note 318, 646-648.
[321] By definition, not all interested parties are alive where real property is transferred from a deceased to the estate. However, the interests of the deceased are protected by the probate system since the estate representative must usually obtain a COA (unless the estate is exempt pursuant to the Director of Titles policy discussed in chapter IV.C.10 above).
[322] Moore, note 318, 689-701.
[323] Hakim, note 8, 61-62.
[324] Trustee Act, note 6, ss.47(1).
[325] SALRI Paper, note 61, 40.
[326] SALRI Paper, note 61, 40.
[327] Ontario, Ministry of the Attorney General, Suing in Small Claims Court, online: http://www.attorneygeneral.jus.gov.on.ca/english/courts/scc/#filing.
[328] Ontario, Ministry of the Attorney General, Small Claims Court E-filing Service User Guide (2015), online: http://www.attorneygeneral.jus.gov.on.ca/english/courts/scc/e-filing/small_claims_e-filing_user_guide.pdf
[329] Interview with and email from CRA representative (January 23 and 24, 2015).
[330] See, for example, Lorne Sossin, “Access to Administrative Justice and Other Worries” in Colleen M. Flood & Lorne Sossin, eds., Administrative Law in Context, 2d ed. (Toronto: Emond Montgomery Publications, 2013); Council of Canadian Administrative Tribunals (CCAT), Literacy and Access to Administrative Justice in Canada: A Guide for the Promotion of Plain Language (Ottawa: 2005), 12, online: http://www.ccat-ctac.org/CMFiles/Publication/Literacyandjustice.pdf.
[331] Hakim, note 8, 96.
[332] Hakim also makes this suggestion: Hakim, note 8, 96. She notes that income tax preparation guides are mass-produced, readily available in locations such as post offices and pharmacies, and designed to help individuals with no tax background.
[333] Community Legal Education Association (Manitoba) (CLEAM), Estates Under $10,000 [CLEAM Summary Guide], online: http://www.communitylegal.mb.ca/wp-content/uploads/Estates-Under-10000.pdf.
[334] CLEAM, Manitoba Probate Guide for Small Estates [CLEAM Small Estates Guide], online: http://www.communitylegal.mb.ca/wp-content/uploads/Probate-Guide-Read-this-First1.pdf. The CLEAM site also provides a comprehensive checklist of tasks for executors, which doubles as a plain-language message conveying the magnitude of responsibility entailed by the executor’s role: CLEAM, An Executor’s Checklist (2008), online: http://www.communitylegal.mb.ca/wp-content/uploads/Executors-Checklist1.pdf.
[335] Another example of an unofficial plain-language guide was published by the People’s Law School in British Columbia after WESA came into force: People’s Law School (B.C.), Being an Executor, 2014, online: http://www.publiclegaled.bc.ca/wp-content/uploads/2014/04/English-Being-an-Executor-2014_online.pdf.
[336] CCAT, note 330.
[337] McGill, note 242, 234.
[338] New York, SEAP, note 257.
[339] New York CourtHelp, online: http://www.nycourts.gov/courthelp/. This is the court system’s website for unrepresented litigants.
[340] Suffolk County Surrogate’s Court Small Estate Program (29 July 2013), New York State Courts Access to Justice Program, DIY Forms User Testimonials [SEAP User Testimonials], online: http://www.nycourts.gov/ip/nya2j/diytestimonials.shtml. (Unsurprisingly, the collection of testimonials does not include negative feedback.)
[341] Suffolk County Surrogate’s Court Small Estate Program (27 August 2012), SEAP User Testimonials, note 340.
[342] Monroe County Surrogate’s Court Small Estate Program (5 May 2012), SEAP User Testimonials, note 340.
[343] Suffolk County Surrogate’s Court Small Estate Program (22 January 2012), SEAP User Testimonials, note 340.
[344] Richmond County Surrogate’s Court Small Estate Program (18 October 2011), SEAP User Testimonials, note 340.
[345] Orange County Surrogate’s Court Small Estate Program (7 January 2010), SEAP User Testimonials, note 340.
[346] Onondaga County Surrogate’s Court Small Estate Program (4 January 2010), SEAP User Testimonials, note 340.
[347] In 2011, CourtHelp as a whole received over 740,000 unique visits, or 23% more visits than it received in 2010: New York State, Unified Court System Annual Report 2011, online: https://www.nycourts.gov/reports/annual/pdfs/2011annualreport.pdf.
[348] New York State Courts Access to Justice Program, Document Assembly Programs Best Practices Guide for Court System Development and Implementation Using A2J Author (June 2013), online: http://www.nycourts.gov/ip/nya2j/pdfs/BestPractices_courtsystemdocument_assemblyprograms.pdf.
[349] NYS Courts Access to Justice Program, Best Practices for Court Help Centers and Programs to Assist Unrepresented Litigants, online: http://www.nycourts.gov/ip/nya2j/pdfs/NYSA2J_BestPracticesHelpCenter.pdf; Hon A Gail Prudenti & Fisher, Hon Fern A, Facilitating Access Training Program: Reference Manual, vols 1 & 2 (New York State Unified Court System, 2013), online: http://www.nycourts.gov/ip/nya2j/pdfs/FATPV1.pdf, http://www.nycourts.gov/ip/nya2j/pdfs/FATPV2.pdf.
[350] See suggestions in Hakim, note 8, 102.
[351] Interview with rural estates practitioner (November 17, 2014); Botsford submission, note 42.
[352] Botsford submission, note 42, 2.
[353] This comment is equally applicable to recommendations 10, 13 and 14.
[354] Association of Community Legal Clinics of Ontario (ACLCO), Community Legal Clinic Transformation Projects, online: http://www.aclco.org/public_docs/Projects_Docs/Overview.html#V.
[355] Law Society of Upper Canada, Examples of TAG Collaborative Initiatives, online: http://www.lsuc.on.ca/with.aspx?id=2147498877.
[356] LCO, Increasing Access, note 150.
[357] Recall that the affordability of legal advice in probating an estate is based on the value of the estate, not on the personal resources of the estate representative. An estate representative acts as a trustee to the estate. Costs of probating and administering the estate are deducted from the value of the estate: see chapter III.B.
[358] JusticeNet, Who qualifies for this service?, online: http://www.justicenet.ca/who-qualifies/. Eligibility requires that the individual have a family income of less than $59,000 and is in financial difficulty.
[359] JusticeNet, Areas of Law Covered, online: http://www.justicenet.ca/areas-of-law/.
[360] Legal Aid Ontario, Power of Attorney/Wills and Estates, online: http://www.legalaid.on.ca/en/getting/type_civil-willsandestates.asp.
[361] Email from community legal clinic lawyer (January 5, 2105).
[362] See, for example, Action Committee on Access to Justice in Civil and Family Matters, Access to Civil & Family Justice – A Roadmap for Change, October 2013; Ontario Civil Legal Needs Project, Listening to Ontarians, 2010; CBA Access to Justice Committee, Reaching Equal Justice: an Invitation to Envision and Act, 2013.
[363] Ontario Civil Legal Needs Project, note 362.
[364] Ontario Civil Legal Needs Project, note 362, 56.
[365] Ontario Civil Legal Needs Project, note 362, 60.
[366] CBA Access to Justice Committee, note 362, 10, citing Employment and Social Development Canada, Indicators of Well-Being in Canada, Learning – Adult Literacy, online: http://well-being.esdc.gc.ca/misme-iowb/.3ndic.1t.4r@-eng.jsp?iid=31.
[367] LCO, Increasing Access, note 150, 69-71.
[368] Specialized programs include Family Law Information Centres (FLICs) and the Mandatory Information Program (MIP): LCO, Increasing Access, note 150, 18-22.
[369] CBA Access to Justice Committee, note 362, 25.
[370] See Family Law Rules, O. Reg. 114/99, Rule 8.1.
[371] ACLCO, note 354.
[372] JusticeNet, note 358; Legal Aid Ontario, Am I Eligible for Legal Aid?, online: http://www.legalaid.on.ca/en/getting/eligibility.asp.
[373] Law Society of Upper Canada, Choosing the Right Legal Professional, online: http://www.lsuc.on.ca/lawyer-or-paralegal/.
[374] Legal Aid Ontario, Student Legal Aid Services Societies, online: http://www.legalaid.on.ca/en/contact/ contact.asp?type=slass.
[375] Ontario Bar Association, Make A Will, online: http://www.oba.org/News-Media/Press-Releases/2014/November-is-MAKE-A-WILL-MONTH.
[376] Hakim, note 8.
[377] Hakim, note 8, 9 and footnote 23.
[378] Hakim, note 8, 9.
[379] Ontario does not require that the complete will be attached to the notice but some other provinces do.
[380] Hakim, note 8, 62-63.
[381] Judges Technology Advisory Committee, Open Courts, Electronic Access to Court Records and Privacy: A Discussion Paper, (Canadian Judicial Council, May 2003), 29-30, online: https://www.cjc-ccm.gc.ca/english/news_en.asp?selMenu=news_pub_all_en.asp.
[382] Estates Act, note 62, 27.
[383] Judges Technology Advisory Committee, Model Policy for Access to Court Records in Canada (Canadian Judicial Council, September 2005), online: https://www.cjc-ccm.gc.ca/english/news_en.asp?selMenu=news_pub_all_en.asp.
[384] SALRI noted the privacy issues in creating a publicly accessible database of small estate declarations. It suggested that the registry should not include details of the will or the names of beneficiaries or creditors: SALRI Paper, note 61, 41.
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