It has been two months since the new process and forms for obtaining a Certificate of Appointment (probate grant) came into effect at the beginning of the year under Ontario Regulation 709/21.  As my colleague, Sandra Arsenault, wrote in her blog “The new amendments, which come into effect as of January 1, 2022, drastically alter the probate procedure by eliminating 43 existing forms, introducing 8 new consolidated forms and amending 15 other common forms under Rules 74 and 75 of the Rules of Civil Procedure.  The regulation entirely revokes Rules 74.04 and 74.05 and replaces these rules with one new simplified Rule 74.04 which includes applications for both with and without a will.”

That is a lot of change!  Even for us law clerks and others in the estates area who regularly prepare probate applications, there has been a steep learning curve as we work through the new forms.[1]  In today’s blog I will set out a few of the questions that are being asked and share the answers to these questions.  I also wanted to refer you to the Estates Procedures Manual which is an amazing resource for answering your questions.  Many of you are already familiar with it, but in case you are not, I’ll set out what it is and how to get a copy.

1. Do I need to mark the original will and original codicil(s) as exhibits to Form 74A – Application for a Certificate of Appointment of Estate Trustee?

No.  In Part 2 of Form 74A, you indicate the date of the will and the date of the codicil(s), if any, but there is no wording saying that the will is marked as Exhibit “A” or that the codicils are marked as Exhibit “B” and Exhibit “C”, as was the wording on the old forms.  You only need to attach the will and codicil(s) to the application (see Part 8 – Declarations, on Form 74A).

2. Is my application going to be rejected if I have marked the original will and codicil(s) as exhibits?

Not to worry if you have marked the will and codicil(s) as an exhibit.  The Estates Procedures Manual directs court staff that if a will or codicil is marked as an exhibit to the application, a Registrar’s notice should not be sent.

3. What is the Estates Procedures Manual and how do I get a copy?

The Estates Procedures Manual is prepared by the Court Services Division, Ministry of the Attorney General.  It is the internal manual for its court staff who process estates matters, including applications for a certificate of appointment of estate trustee with and without a will, removing and replacing estate trustees, and passing accounts.  The manual is available for free to the public.  There is a link to request the Estates Procedures Manual on the “Publications” page of the Ministry of the Attorney General website, under the section titled “Power of Attorney/Vulnerable Adults”.  The link opens an email to the Operational Support Branch who will respond to an email request by sending a pdf copy of the Estates Procedures Manual.  The email address is CSDmanual@ontario.ca.  The email reply includes a note that the manual is intended for court staff use, that members of the public should consult a lawyer for legal advice and “Despite anything in the manual, court staff are subject to judicial direction as outlined in section 76 of the Courts of Justice Act.”

The Estates Procedures Manual was completely overhauled in December 2021 for the launch of the new rules and forms, and has been updated several times since then.  The most current version, which I requested earlier this week at the time of writing this blog, was the version updated on February 11, 2022.  The cover page of the manual handily sets out the page number, section and item number or paragraph that was revised so you can more easily find the updates.

4. What about the Affidavit of Execution – do I need to mark the original will or original codicil as an exhibit to it?

Yes.  An exhibit stamp is still needed on the back of the signing page of the will or codicil(s).  Form 74D – Affidavit of Execution of Will or Codicil says “1. On (insert date), I was present (insert “in person” or “by video conference”) and saw the document marked as Exhibit “A” to this affidavit executed by (insert name).”

5. Is the old form of Affidavit of Execution still acceptable?

Our usual practice is to prepare the Affidavit of Execution and have it sworn around the time that the will is signed or shortly after, and it is then stored with the original will in our vault or in the safekeeping of the client or their family office/advisor.  The form of the Affidavit of Execution complies with the rules of court and prescribed forms in place at that time.  The Estates Procedures Manual acknowledges that it would be time consuming and expensive to recreate an Affidavit of Execution to comply with the current rules and forms requirements, as witnesses can be difficult to locate.  Staff are told to accept Affidavits of Execution of Will or Codicil (old Form 74.8) that do not comply with current font size requirements or have minor variations in wording, but to seek judicial direction if they have a question about whether the wording is acceptable.

These are only a few of the questions that are being asked, but I hope you find this information helpful.  Thanks for reading.

[1] https://ontariocourtforms.on.ca/en/rules-of-civil-procedure-forms/pre-formatted-fillable-estates-forms/