Estate Planning

Probate and Proving a Will

By Hull and Hull LLP

The term "probate"  recurs throughout estates practice as a noun, verb and adjective.  The most common context refers to the process of getting a court to provide some sort of official certification or recognition that a testatmentary instrument is the Last Will of a deceased.  In Ontario, the probate process results in the issuance of a Certificate of Appointment of Estate Trustee With a Will (or Without a Will).

Under the modern Rules of Civil Procedure, the procedure resulting in the issuance of a Certificate of Appointment rarely requires that a judge review the application, or even the alleged Will.  By Rule 74.14, an application need be referred to a Judge only where, in the opinion of the Registrar, the application and the accompanying materials are not complete or contain information on which the Registrar has a doubt.  This results in an efficient administrative process, but any interested party can challenge the validity of a such a probated Will, and the fact that a Will has been "probated" has no probative value when it comes to proving the Will in solemn form, as it is called.  

A judgment upholding the validity of a Will does not necessarily "probate" that Will.  Parties to the proceeding may not want a Certificate of Appointment to be issued, and so they will not request that a Certificate of Appointment be issued as part of the Judgment.  This might be the case where the Will is a "corporate" or "secondary" will, and is restricted to assets that can pass outside of probate (often to avoid estates administration tax).

Have a great weekend,

Chris Graham

Full post as published by Toronto Estate Law Blog on July 15, 2010 (boomark / email).