In an effort to simplify the province’s estate law, the Ontario government filed a regulation on October 15, 2021, amending Rule 194 under the Courts of Justice Act (Rules of Civil Procedure). The regulation makes significant changes to the probate application process and aligns it with other estate law changes to take effect next year. In this blog we summarize these important estate law changes, set to come into effect on January 1, 2022.
Estate court forms simplified
The government is reducing the number of estate forms from 58 to 23, simplifying the format of the forms, improving the guiding language and introducing one set of requirements for Applications with a Will and Applications without a Will.
The regulation eliminates 43 forms, introduces eight new forms and amends 15 forms. The new forms are simpler and more accessible, and feature improved guiding language. A new explanatory notice is attached to the application form which explains to an estate beneficiary the reason that they are receiving the application, their right to object to the application, and potential outcomes.
The government intends to simplify estate probate matters with these clarified forms and make the process more accessible for lay persons.
Changes to court rules regarding estate matters
One new simplified rule now covers both Applications with a Will and Applications without a Will. This new Rule 74.04 replaces the current Rules 74.04 and 74.05. The new rule 74.04, which deals with the certificate of appointment of an estate trustee, provides as follows:
74.04 (1) A person may seek a certificate of appointment of estate trustee by filing an application for a certificate of appointment of estate trustee (Form 74A) together with,
(a) an affidavit (Form 74B) attesting to service in accordance with subrules (2) to (6);
(b) proof of death;
(c) a draft certificate of appointment of estate trustee (Form 74C);
(d) if there is a will, the original of the will and of any codicils, together with the following evidence of due execution of the will and each codicil,
(i) if the will or codicil is not in holograph form,
(A) an affidavit of execution (Form 74D) of the will or codicil,
(B) if the will or codicil contains an alteration, erasure, obliteration or interlineation that has not been attested, an affidavit as to the condition of the will or codicil at the time of execution (Form 74E), or
(C) if each of the witnesses to the will or codicil has died or cannot be found, such other evidence of due execution as the court may require, or
(ii) if the will or codicil is in holograph form, an affidavit attesting that the handwriting and signature in the will or codicil are those of the deceased (Form 74F);
(e) a renunciation (Form 74G), from the following persons:
(i) if there is a will, from every living person who is named in the will or codicil as estate trustee who has not joined in the application and is entitled to do so, or
(ii) if there is no will, from every person who is entitled in priority or is in equal right to be named as estate trustee and who has not joined in the application;
(f) if there is no will, or if there is a will but the applicant is not named as an estate trustee in the will or a codicil, a consent to the applicant’s appointment (Form 74H) by persons who are entitled to share in the distribution of the estate and who together have a majority interest in the value of the assets of the estate at the date of death;
(g) in the case of an application for a certificate of appointment of estate trustee with a will limited to the assets referred to in the will, a draft order in Form 74I granting the certificate of appointment;
(h) any security required by the Estates Act; and
(i) such additional or other material as the court directs.
The new Rule 74.04 also changes the process for serving and filing Notices of Application under Rule 74. These changes model the approach to the new Rule 74.1 small estates process that was introduced in April of this year.
Court Forms Align with Succession Law Reform Act
The changes to the estate court forms align them with Succession Law Reform Act (“SLRA”) amendments that were made through the Accelerating Access to Justice Act, 2021, which received Royal Assent and was enacted on April 19, 2021. The new Rule 74 application forms maintain the current approach to collecting information regarding spousal relationships, with modifications to align with the recent legislative amendments relating to a will made prior to marriage and relating to a separated spouse’s entitlements. The amendments to SLRA sections 15(a), 16, 17 and new section 43.1 will come into force on January 1, 2022.
Contact the Estate Lawyers at Derfel Estate Law for Advice on Probate Matters
While these changes are intended to simplify the estate process in Ontario, they represent a significant overhaul of estate law processes. At Derfel Estate Law, our estate lawyers stay current on probate procedures to ensure our clients’ estate matters move through the court system as seamlessly as possible. Call us at 416-847-3580 or contact us online to schedule a consultation