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Stopping Probate

Why would someone want to stop a probate application? How can probate be stopped?

Imagine that Mom is senile and in the nursing home. She is at death’s door and her daughter Debbie brings in a lawyer to draft a new will in which Mom names Debbie as her executor and bequeaths her home and all her money to Debbie. When Mom dies, her son Ian is upset especially since the previous will divided everything equally between him and Debbie.

WHY STOP PROBATE?

In Ontario when the deceased left a Will, Probate is called a “certificate of appointment with a will”. In our case scenario if the court issues Probate Debbie, as estate trustee/executor, has authority to administer the provisions of the Mom’s will. Ian will want to stop probate because otherwise his sister will inherit Mom’s home and get all of Mom’s money. Without probate:

  • banks are unlikely to release the Mom’s money or give the executor access to the deceased’s safety deposit box;
  •  public companies will not transfer shares to the estate;
  •  insurance companies are loathe to pay out on policies without first seeing a certificate of appointment; and
  • the land registrar ordinarily does not permit the transfer of land based only on the will. It is for this reason that, more often than not, executors apply for and receive a certificate of appointment with a will.

This certificate of appointment gives these institutions the certainty that the document in question truly is the last will and testament of the deceased and permits the executor to carry out his duties.
So – the bottom line is if there is a will challenge the challengers want to prevent the Will from being probated.

HOW TO STOP PROBATE IN ONTARIO

If the court has not granted probate then the first step should be filing a Notice of Objection to prevent the Will from being probated. The Notice of Objection will set out the nature of our client’s financial interest and the grounds for the objection. As long as the objector follows the necessary legal steps, as a result of filing the notice of objection the applicant for a Certificate of Appointment of Estate Trustee (the Probate application) cannot obtain probate without the issues in dispute being litigated or resolved. For more information on this process see Rule 75.03 of the Rules Of Civil Procedure – R.R.O. 1990, Reg. 194.

If Probate was already granted then the parties challenging the will have stop the executor from administering the estate and the only way to do that is to bring a motion for the return of the certificate of appointment or for the court to revoke the certificate of appointment.

  •  Return Of Certificate Of Appointment Rule 75.05 Ian could bring a motion asking the court to make his sister return the certificate of appointment (the Probate) because he is challenging the will.
  • Revocation Of Certificate Of Appointment Rule 75.04. Ian could also bring an application to have the Probate Revoked. To do so he would have to have an apparent financial interest in the estate and be able to satisfy the court that :

o the certificate was issued in error or as a result of a fraud on the court;
o the appointment is no longer effective; or
o the certificate should be revoked for any other reason.

Charles Wagner

The author of this blog is Charles B. Wagner. Charles is a Certified Specialist in Estates and Trusts and partner at Wagner Sidlofsky LLP.

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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