Six months after overhauling the probate application process, the Ontario government has amended many of its estate forms in an attempt to clarify ambiguous instructions that were leading to applications being rejected.
Ontario Regulation 435/22 introduces amendments to 10 estate forms and five rules of civil procedure, which govern the probate application process. The changes are meant to make it easier for applicants to complete probate applications, lead to fewer filing errors and help court staff in reviewing and resolving applications, the government indicated.
The amendments are effective as of July 1, but the province has provided a three-month grace period, ending Oct. 1, 2022, during which time the Jan. 1, 2022 version of the revised forms may still be used to file an application.
In January, Ontario consolidated 43 existing estate forms into eight new forms and made changes to 15 others. The new forms, which featured a larger font, fillable text boxes and simplified language, were meant to streamline the probate process and align it with changes to provincial estate law that took effect this year.
However, estate practitioners expressed frustration with the new forms from the start, said Krystyne Rusek, an estate lawyer with Pallett Valo LLP in Mississauga, Ont. Certain sections in the new forms featured confusing or inconsistent instructions, and the forms’ fillable text boxes did not allow for additional information to be included with the application, making it difficult for estate lawyers to tailor probate applications to specific circumstances.
“By combining 43 different forms into eight and trying to simplify them you’re going to miss things, and that’s exactly what happened,” Rusek said. “[Estate] practitioners were not able to understand some of the information that needed to be input and didn’t know how to input this information [in the application].”
In February, the trusts and estates section executive of the Ontario Bar Association, of which Rusek is a member, set up a working group to collect questions and comments about the new forms from estate practitioners. A list of 30 questions and comments were then submitted to the court services division of Ontario’s ministry of the attorney general in early March, some of which have been addressed in the amendments, Rusek said.
The amended forms now provide more direction as to which documents must or may be filed as part of probate application and allow for additional information to be included in the application.
For example, the amended forms now clarify that as part of the application, the original will and any codicils should be attached and marked as an exhibit to an affidavit of execution, affidavit of condition or another affidavit proving execution of the will. The Jan. 1 forms contained no such instruction.
“This was raised by many [estate] lawyers because the practice previously had always been to mark [the will or any codicil] as an exhibit,” Rusek said.
Changes to the rules of civil procedure, included in the changes and reflected in the amended forms, now address, among other issues, the process for dispensing with, or reducing, the amount of administration bond required where the deceased died without a will, or where the applicant for probate was not named in the will or resides outside of Ontario. The administration bond serves as security against fraud or improper administration of the estate.
The process of making a request to dispense with, or reduce, the administration bond had been established in case law, but the change to the court rules formalizes that process for the first time.
“[The change] provides a great deal of guidance to people as to how to go about having an administration bond waived,” Rusek said.