The Ontario government recently introduced and approved significant amendments to the new probate forms that came into effect on January 1st, 2022. In addition to the form amendments, O. Reg. 435/22[1], which came into force on July 1st, 2022, also makes changes to Rules 74 and 74.1 of the Rules of Civil Procedure, which govern the probate process in Ontario.
As indicated in a previous blog, the new probate forms were intended not only to address the changes in estate legislation that were coming into effect in January 2022, but also to simplify the application process[2]. As with any new system, various issues were soon identified by estate practitioners, primarily with respect to ambiguous terminology and instructions on the forms, but also with respect to limitations on the ability to tailor the fillable forms to address specific situations. In many cases, applications were rejected by court staff because of errors on the forms.
Some of these issues were addressed by amendments to the Estates Procedures Manual[3], published by the Court Services Division of the Ministry of the Attorney General, and used by staff in processing probate applications. Many of the remaining questions and comments have now been addressed by the amendments to the forms under O. Reg. 435/22.
In total, 47 changes have been made to 10 probate forms, including the following amendments to the Application forms 74A and 74.1A (small estates):
- the term “spouse” has been amended to “married spouse”, in order to clarify that the term does not include common law spouses;
- under the section dealing with the applicant’s entitlement to apply, the form has been amended to allow an applicant to explain why an estate trustee named in the Will is not applying for a Certificate of Appointment;
- where there are multiple applicants, the instructions in the form now indicate that various sections must be reproduced for each applicant;
- sections in Part 3, relating to the deceased’s spousal relationships, are to be removed, if not applicable;
- two sections have been added to form 74A, the first addressing requests for deferral of payment of the estate administration tax, and the second addressing administration bonds.[4]
On June 25th, the government announced a 3-month grace period for use of the new forms, indicating that the old forms will be accepted until October 1st, 2022.
In addition to the amendments to the forms themselves, Rules 74 and 74.1 have been amended to address other concern. For example, when the new forms came into place in January 2022, one issue that was identified by estate practitioners was that there was no requirement to mark the original Will or codicil as an exhibit to any sworn document. Rule 74.04 now clearly indicates that the original Will or codicil must be marked as an exhibit to an affidavit of execution[5].
The government has provided a comprehensive chart, summarizing the amendments to the forms and to the Rules[6]. Although the amendments address many concerns raised, it is likely that there will be some remaining issues that will need to be addressed by future legislation. For the time being, it is hoped that the amended forms will be easier to understand and complete, and that fewer applications will be rejected.
[1] O. Reg. 435/22: https://www.ontario.ca/laws/regulation/r22435?search=435%2F22
[2] Just When You Thought You Were Safe….More Changes to Estate-Related Legislation
[3] Can be requested by emailing: csdmanual@ontario.ca.
[4] See recent blog on new procedures for administration bonds: Probate Forms and Rule 74 Now Provide Detailed Procedure Regarding Administration Bonds
[5] Or affidavit of condition of the Will or other affidavit with evidence of due execution of the testamentary document.
[6] Can be found at: http://ontariocourtforms.on.ca/static/media/uploads/courtforms/civil/summary_of_rcp_amendment_regulation_o.reg._435_22_amending_estate_court_rules_and_forms.pdf.
Author: Krystyne Rusek, Lawyer