Estate Planning

Court Provides Further Guidance on Dispensing with Bonds

By Hull & Hull LLP

In the recent decision in Re Andrews Estate, the Superior Court of Justice at Toronto, provided further clarification regarding dispensing with an administration bond. 

A prospective executor is generally required to post a bond before probate is granted if (1) the executor resides out of the province; (2) a person has died with a will, but fails to name an executor; and (3) a person has died without a will. 

The earlier decision out Re Henderson Estate set out what an executor applying for probate should file in support of a request that the court dispense with the requirement of a bond and, in particular, what evidence should be contained in an affidavit (commonly called, an 'affidavit of debts').    

Re Andrews elaborated on the requirements found in Re Henderson and, in particular, the number of affidavits of debts that must be filed and the form they are required to take. 

There were two executors applying to dispense with a bond. In support of the application, one of the two filed an affidavit containing the information required by Re Henderson. The court office rejected it on the basis that each executor had to swear an affidavit. The Court found that this was not the case saying that to do so was redundant and did little than create unnecessary paper work.  Instead, the affidavit of one of the two was sufficient. 

In this case, the applicants had re-filed the materials, with the other executor swearing an affidavit. This second attempt was rejected by the court office on the basis that the affidavit did not specify that it was made in support of a motion to dispense with a bond. The court found that there was nothing in the Estates Act or Rules of Civil Procedure that required this type of language to be included.  

In the end concluded that, on the basis of the materials filed, it was an appropriate situation to dispense with a bond – and also apologized to the applicants for the delay.

Have a great day,

Megan F. Connolly

Megan F. Connolly - Click here for more information on Megan Connolly.

Full post as published by Toronto Estate Law Blog on December 01, 2009 (boomark / email).