Today’s blog was written by Sandra Arsenault, Law Clerk at Fasken LLP, in collaboration with Jessica Butler, Law Clerk at Fasken LLP.
As we move into fall and the corresponding back to school (or office) routines, we in estates administration have a further revision to our primary “textbook.” The latest update to the CSD Estates Procedures Manual (the “Manual”)[i] is now available.
This Manual, which used to be published once a year, has been updated five times thus far in 2022 including January 1st, January 20th, April 6th, July 1st and this latest version (as far as we are aware) came into effect on August 19th.
This recent version contains 16 amendments to the prior version of the Manual.
Some highlights of the most recent version
- Exhibit Stamp: This version of the Manual announces that the exhibit stamp does not have to be on the back of the Will. That’s right, after an eternity of ensuring that the exhibit stamp is carefully placed on the back of the signing page of each Will, the Manual now clarifies that although ideally the exhibit stamp for an affidavit of execution (or other affidavit as applicable) is on the back of the signing page, it can even be on a separate sheet of paper and confirms that an application should not be rejected on the basis that an exhibit stamp is not directly on the back of the Will. In fact, as the Manual adds, there is no actual legislative provision or court rule directing the placement of an exhibit stamp for a Will. A small and very late consolation for the large club of applicants and practitioners previously rejected on this basis.
- Later Will on Deposit: When a later Will is determined to be on deposit during the application process, a Form 74N Notice will now be sent to Estate Trustees of that later Will on deposit, as well as the usual notice being sent to the applicants.
- Spousal Status of Applicant: When a “spouse” of the deceased is an applicant, the Manual provides specific instructions for completing the application and attaching schedules based on: whether at death the spouse was married to the deceased; was a common law partner of the deceased; separated from the deceased; divorced from the deceased; is electing an equalization of net family property under the FLA; or, was married after the date of the Will and before January 1, 2022.
- If Deceased was widowed: New information is included in the Manual to determine whether a schedule needs to be provided regarding the death of the deceased’s spouse for applications both with and without a Will.
- Deceased Beneficiary: An explanation must be provided that sets out whether the beneficiary died before or after the Deceased Testator. If no explanation is provided, the application will be referred for judicial review.
- Deceased Beneficiary (died after Testator): If the beneficiary died at a later date, the beneficiary’s estate representative may need to be served. The Manual notes that the Will should be checked for alternate beneficiaries and survival periods. If a beneficiary dies before the end of the survival period, it is as though the beneficiary predeceased the Testator.
- Deceased Beneficiary’s Estate and consent to waiver of bond: If seeking an Order dispensing with a bond, consent must be obtained from all beneficiaries of a Deceased Beneficiary’s Estate if such Deceased’s Beneficiary’s Estate is entitled to a gift.
- Court Order Required: If the Certificate is being issued pursuant to Court Order, the Certificate should contain language such as “This Certificate issued pursuant to the Order of Justice XX”, etc. An application should not be rejected if this language is missing – the Registrar is instructed to insert it. Orders obtained for dispensing with a bond or deferring payment of Estate Administration Tax do NOT need to be referenced on the Certificate.
- Ancillary Applications: This clarifies that if the applicant is not resident in Canada or a commonwealth nation, a bond must be posted or ordered disposed of.
Sandra’s Perspective: Then and Now
One year ago, I eagerly blogged about the drastic new changes to the estate administration procedure in Ontario in my article: Surprise…More Big Changes Coming to Estate Administration.
The proposed changes passed on October 15, 2021, held the promise of reduced costs, a simplified process, court forms that were easier to fill out and the expedited processing of applications by court staff.
In the last year, estates administration has been anything but easy, simple or cost effective.
The forms and manuals have been revised to correct missing information or misinformation and structured to include every kind of scenario imaginable and thereby also including a confounding amount of information, both relevant and irrelevant and most of it confusing, into each form.
The grace period for the revised forms which were introduced on July 1st just expired on October 1st. However, any applications requiring corrections must still use the forms that were in force at the time the application was made, even if this required form was the more confusing version.
A basic Application form which started as a three page document last year, is now a 15-20 page document. It is easy to miss or even delete a mandatory statement or check a wrong box among the pages and pages of answers and declarations which may or may not apply to your situation.
Somehow, the court rejection rate appears to have increased in the last year. I did not even think that was a possibility, as the Toronto Estates court once boasted a 90% rejection rate – as some old-timers can attest to!
I have yet to see any recent applications under the new system receive expedited service from any of the court offices I have submitted to.
In terms of my prediction that “these new forms will be easier for individuals with little to no estate administration experience,” I couldn’t have been more wrong. I am not confident that even an experienced estate practitioner could complete the new forms correctly without consulting the most recent version of the 204 page PDF Manual described above.
In terms of requirements, the new rules seem to be more rigid than ever. Word among the estates clerks in Toronto is that it is now increasingly common to have to obtain a bond or bring a motion in order to have an executor be appointed, which adds time, cost and complexity to an already burdensome procedure.
Like when downloading the latest operating system, I often find myself wishing I could go back to the familiar estates procedures that we all knew (and previously complained about). But just like with any new software, we will have to keep downloading those updates and bug fixes and hope that eventually it gets easier as it looks like these changes are here to stay.
And in the theme of World Mental Health Day this week, thank you for letting me share my frustrations with you. This therapy session is now complete.