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probate application

Do I always have to Apply for Probate?

The short answer is no, but in reality, this question is much more nuanced and complicated than people think.

In Ontario, the authority of an estate trustee is derived from the Will, not the certificate of appointment (formerly known as probate).1 As such, if no one questions that authority, there is no need to apply for probate2 and incur estate administration tax of half of a percent on the first $50,000 of the assets of the estate and 1.5 percent on the value of assets after the first $50,000.3
However, more often than not, probate is a practical necessity. Oftentimes, financial institutions may justifiably question whether the Will they are presented with is the last Will and testament. Similarly, third parties may insist on a certificate before purchasing estate assets. Finally, while an executor can bring an action in his/her capacity as an executor before probate is granted, obtaining that judgment may be difficult.4

The purpose of probate5is to alleviate the concerns presented in the above scenarios. As the Ontario Court of Appeal explains in Neuberger v. York, probate is the court procedure by which a will is proved to be valid or invalid. The Court’s jurisdiction is inquisitorial. The Court’s role is more invasive, because the Court has a special responsibility to the testator, who cannot be present, to give voice to his or her true intentions.6

In other words, the certificate acts as evidence of the Court’s approval of the executor’s authority.

As such, while a financial institution, acting reasonably, should not demand a certificate of appointment before granting the estate trustee access to the deceased’s accounts,7 “a practical compulsion usually exists for the executor to obtain probate in order to comply with his or her legal obligations.”8

Technically, an estate trustee does not need to apply for a certificate of appointment of estate trustee with a will. However, in the vast majority of cases, probate will be a practical necessity because administering the estate will require proving who are the executors. It will be necessary to provide third-parties with evidence of the executor’s authority and therefore probate will simply be a prerequisite to the administration of the estate.

Footnotes
  1.   Carmichael v. Carmichael Estate, 2000 CarswellOnt 71 (Ont. S.C.J.) at para. 21
     
  2.   What clearly evidences that probate is not always required is the practice of ​ some ​people of means ​to make more than one will. ​This practice is in place so as not to pay pay probate fees unnecessarily. The client’s assets are divided into two pools​ with one set of assets dealt with in a primary will and the second set of assets deal with in the secondary will. ​The secondary will purports to deal specifically ​with those assets that can be transferred without the need of input from a third party​. Examples include shares in a private corporation, ​art, ​bearer bonds, etc.   The ​primary will​ deals with all the other assets that requires a third party to be involved in the transfer. Probate is necessary to deal with the assets of the primary will because it is a certification by the court that the testamentary document in question is the last will and testament dealing with the assets listed therein and the person appointed has authority to deal with the assets in question.   Examples include the land registrar for the transfer of real estate, banks for access to money or Insurance Companies for access to life insurance proceeds. ​For those interested in this topic I refer you to the following:


     

  3.   Estate Administration Tax Act
     
  4.   See Harshenin v. Bayoff, 1991 CarswellBC 607 (BCSC) at para. 23 citing Chetty v. Chetty, (1916) 1 A.C. 603 (Singapore P.C.) . As Professor Oosterhoff says, in his text of Wills and Succession, “ no action can be maintained against a named executor unless he or she has obtained a grant of probate.” Also see paragraph 57 of the Ontario Court of Appeal decision in Eurig Estate, Re 1997 CarswellOnt 56, (1997) O.J. No. 101, 31 O.R. (3d) 777, 68 A.C.W.S. (3d) 382, 96 O.A.C. 354 where the OCA says, “…the law imposes the requirement that an executor must have probate to prove his or her title when an estate matter is before the court. Letters probate are the only evidence of an executor’s title which a court will receive.” The decision was reversed on other grounds, but it appears clear that probate has been required by an executor to represent the estate’s interest in court. Query whether probate is needed once a court had ordered the removal of an executor and his/her replacement with a new person. Finally, David Smith has a blog on this topic which is available on line at https://hullandhull.com/2017/08/can-estate-commence-action-probate/
     
  5.   The terms probate and certificate of appointment of estate trustee are used interchangeably throughout this blog
     
  6.   Neuberger v. York, 2016 ONCA 191 at para. 66-68
     
  7.   Leasa v. Leasa, 2005 CarswellOnt 7480 (ONt. S.C.J.) at para. 9
     
  8.   Eurig Estate (Re), 1998 CarswellOnt 3950 (SCC) at para. 17
     

David Wagner

The author of this blog is David Wagner. David is an associate at Wagner Sidlofsky LLP.

This blog is not intended to serve as a comprehensive treatment of the topic. It is not meant to be legal advice. Every case turns on its specific facts and it would be a mistake for the reader of this blog to conclude how it might impact on the reader’s case. Nothing replaces retaining a qualified, competent lawyer, well versed in this niche area of practice and getting some good legal advice.
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