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.
The best step an estate trustee can take is to approach an experienced solicitor for assistance in obtaining probate. The process will likely go far quicker and more efficiently.
Probate in Ontario is called "a certificate of appointment of estate trustee with a will". This article addresses what steps have to be taken in Ontario to stop the process of getting a Will probated.