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probate application

Can a Non-Resident Apply for Probate?

A case review of Armstrong Estate, Re1

Section 5 of the Estates Act (the “Act”) states “Letters of Administration shall not be granted to a person not residing in Ontario”.2 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.

In 2010 when he heard the Armstrong case, Justice Brown was a Superior Court Judge.3 The case involved a non-resident, Kenneth Greer (“Ken”), living in New Brunswick who applied for a certificate of appointment with a will. Reading s. 5 of the Act you would think that it was an open and shut case and Ken’s application for probate would be denied. But, Justice Brown appointed Ken as the estate trustee. Let’s see why.

William Armstrong (“William”), an Ontario resident, made a will nominating Hazel Greer (“Hazel”) to be the sole executrix of his estate. In case Hazel predeceased him, William named Hazel’s son Norm as the alternate executor. Hazel predeceased William and Norman did not want to do the job. That’s when Hazel’s other son, Ken, who lived in New Brunswick, decided to apply for probate.

In his analysis, Justice Brown asked:

“all residuary beneficiaries have consented to the applicant acting as estate trustee without a bond…this is a family who has decided, for their own reasons, that Kenneth Greer is the appropriate person to administer the estate of the late William Armstrong and, with the bond, full protection for beneficiaries and creditors has been put in place. Taken together, these facts lead one to ask: why not issue a certificate to Mr. Kenneth Greer?

The Estates Office responded that section 5 of the Estates Act prevented that from happening. Justice Brown disagreed. He pointed out that s. 6 of the Act states that “unless the person has given the like security as is required from an administrator in case of intestacy or in the opinion of the judge such security should under special circumstances be dispensed with or be reduced in amount”. Sections 29(1) and (2) gives the court discretion to ignore section 5 of the Act “as in the discretion of the court seems best.”

Based on the Armstrong case, Elena Hoffstein, a senior member of the bar commented:

“Although s. 5 of the Estates Act specifies that “Letters of Administration shall not be granted to a person not residing in Ontario”, when read together with sections 6, 29(1) and 29(2) of the Act, the court is authorized to appoint a non-resident of Ontario as estate trustee if the proposed estate trustee has the consent of the majority of the persons resident in Ontario otherwise entitled to apply for the certificate and where the proposed estate trustee has posted security in the amount of the full value of the estate:” 4

Conclusion – Why Not?

There are two takeaways from this case. Firstly, it is possible under certain circumstances for a non-resident to become an executor in Ontario. 5 Secondly, successful litigators often review the law and propose novel interpretations that are welcome when the circumstances warrant that type of interpretation. As Justice Brown asked, “why not”?

Footnotes
  1.   2010 CarswellOnt 2319, 2010 ONSC 2275, 56 E.T.R. (3d) 9 ( “Armstrong case”)
     
  2.   See Estates Act, R.S.O. 1990, c. E.21
     
  3.   Subsequently Justice Brown was appointed to the Court of Appeal for Ontario
     
  4.   Widdifield on Executors and Trustees 15 — RESIGNATION, REMOVAL AND APPOINTMENT OF TRUSTEES Contributing Editor: Elena Hoffstein, Editor: Carmen S. Thériault
     
  5.   This is the ratio of the Armstrong case and the view of authoritative secondary sources as quoted in the previous footnote. Further, Margaret Rintoul, in Ontario Estate Administration, Fourth Edition, writes, at §2.5.1, that in the case of a certificate of appointment of estate trustee with a will, including what was formerly known as letters of administration with will annexed, “the certificate of appointment cannot be granted to a non-resident of Ontario…without the posting of security unless a judge varies the requirement (E.A., s. 6).”
     

Gregory Sidlofsky and David Wagner

The authors of this blog are Gregory Sidlofsky and David Wagner .

Gregory is a Certified Specialist in Litigation by The Law Society of Ontario and partner at Wagner Sidlofsky LLP. David is a member of the firm’s Estate and Commercial Litigation Groups. He received his TEP designation from STEP and he deals with will challenges, dependants support, guardianship and applications to compel an accounting.

This Toronto office is a boutique litigation law firm whose practice is focused on estate and commercial litigation.

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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