Applying for probate can be cumbersome, expensive, and can delay the administration of an estate. Unfortunately, it may be a practical necessity. The executor often needs to prove that they have legal authority to administer the estate in order to deal with certain types of estate assets. This is especially true in cases where the estate holds substantial assets, such as real property or a portfolio of investments in public corporations. That being the case, probate is not always required, and may even be avoided in some high-value estates.
It is generally understood that an estate typically needs to go through probate where the deceased held real property without any other “joint tenants”. Contrary to popular belief, however, there are some exceptions that allow us to deal with real property without first having to go through probate. One of the more curious and relatively unknown exceptions is known as the “first dealings'' exemption.
The circumstances surrounding the tragic deaths of Barry and Honey Sherman remain a mystery; so too, do the heirs to their fortunes. This is because the estate trustees of Barry and Honey’s estates successfully applied to have their probate applications sealed, thus preventing the public from viewing their wills. In 2018, a reporter for the Toronto Star, Kevin Donovan, challenged the validity of the sealing order.
An individual who seeks to have a will admitted to probate begins proceedings by applying for a certificate of appointment of estate trustee with a will. A person opposed to the will being admitted to probate need only file an objection (or a caveat as it is still called in some provinces).
Rule 13.1 of the Rules of Civil Procedure (the “Rules”) specifies where proceedings (which includes applications and actions) are to be commenced.
In New Brunswick the legislation provides a judge with discretion to ignore the formalities of execution and that is what happened here. Could that happen in Ontario?
The short answer is no, but in reality, this question is much more nuanced and complicated than people think.
When a will challenger has no evidence to support the challenge, what strategy can lawyers take to inexpensively defeat the will challenge, vacate the notice of objection and move forward with probate?
Section 5 of the Estates Act (the “Act”) states “Letters of Administration shall not be granted to a person not residing in Ontario”. The statute appears to be a definite and full answer to our question. But, when answering a legal question, a thorough reading of the statutes and secondary sources dealing with the question together with a full review of how judges interpret the statute is necessary. As the Armstrong case demonstrates, reading only one section of the Act could lead to an erroneous conclusion.
For those who wish to stop the distribution of non probatable assets it is important to know that more might be required then simply blocking probate by filing a notice of objection.