As I have prepared applications for certificates of appointment of estate trustee (“Probate Applications”) over the years, I have kept a list that I call “Probate Points to Remember”. The purpose of this list is to remind me of how I have handled certain practical matters on Probate Applications. In today’s blog, I will share some of these tips regarding names, including “also known as” or AKA names.
It is very important to complete Probate Applications accurately to avoid receiving the dreaded correction notice from the Ontario Superior Court of Justice (the “Court”). In a Law Society of Ontario webinar “Practice Gems: Probate Essentials 2020” held on September 21, 2020, one of the topics was “Avoiding Errors in Your Probate Applications”, with Dora Charalambous, the Toronto Registrar and Supervisor, Court Operations, being one of the speakers. Ms Charalambous advised that of the Probate Applications filed in the Toronto Court, approximately 50% end up in errors, which delays the processing of the Probate Application and the issuing of the certificate of appointment of estate trustee (the “Probate Certificate”). This is a surprisingly high number, which no doubt leads to frustration for both the Court staff and the applicants. Ms Charalambous also advised that inconsistent names is one of the top errors. Let’s dig into this matter a bit deeper, using a Probate Application with a will for an individual applicant (Form 74.4) as an example.
Name of the Deceased
It is important to consider all the names used by the deceased. This means a review of how the deceased is named in the will, on the death certificate and on all the assets held or owned by the deceased. In order for the executor of the estate to use the Probate Certificate to effectively administer the estate and satisfy third parties that they are dealing with the assets or estate of the correct person, all of the names of the deceased need to be captured on the Probate Application.
The name of the deceased must match how the deceased is named in the will. For example, if the will names “Elizabeth Smith”, but her full legal name is Elizabeth Mary Smith and she also uses the name Liz Smith, this is how I would complete the Probate Application boxes:
|details about the deceased person|
|Complete in full as applicable|
|First given name||Second given name||Third given name||Surname|
|Elizabeth||Not Applicable||Not Applicable||Smith|
|And if the deceased was known by any other name(s), state below the full name(s) used including surname.|
|First given name||Second given name||Third given name||Surname|
|Liz||Not Applicable||Not Applicable||Smith|
|Not Applicable||Not Applicable||Not Applicable||Not Applicable|
The names used need to be consistent on all Court documents. The AKA names must be included in all places where the deceased is named in every Court document included with the Probate Application, e.g. in the matter reference line or on the back page. In my example, this would be completed as:
IN THE ESTATE OF ELIZABETH SMITH (also known as Elizabeth Mary Smith and Liz Smith), deceased.
From my Probate Points to Remember list, I also have the following notes:
- You cannot amend the Court form and add more lines if you need more room because the deceased had more AKA names that fit in the boxes on the form. I would insert the words “(see schedule attached)” in the first given name box in the last row and attach a schedule in the same format as the boxes on the form with the additional AKA names.
- If the deceased had a fourth given name, you should not add it by way of schedule as the Court staff would not know how to input it in their computer system. Instead, you would show both the third and fourth given names in the third given name box.
- Similarly, if the deceased was a male who used a suffix after his name, e.g. Jr., Sr., II or III, you would include the suffix in the surname box following the surname, e.g. John Doe, Jr.
- The court will accept the affidavit of execution of will or codicil (Form 74.8) which does not include the deceased’s AKA names if the affidavit was sworn at the time the will was signed. If the affidavit is being prepared after the deceased’s death at the same time as the Probate Application, it must include the AKA names.
- For a Probate Application for resealing or ancillary appointment of a foreign grant issued outside of Ontario, the name of the deceased as set out on the originating document is the name that should be used on the Probate Application. If the deceased had AKA names, even though there may not be reflected on the foreign grant, they should be included on the Ontario Probate Application.
Names of the Executors and Beneficiaries
You also need to be consistent with setting out the names of the executors and beneficiaries on all Court documents. The name of each individual should match how he or she is named in the deceased’s will. For example, if a person is named in the will as Victoria Adams but her married name is now Victoria Beckham, all documents would indicate “Victoria Beckham (referred to in the will as Victoria Adams)”. There is likely no need to refer to an AKA name, such as Posh Spice.
If a beneficiary is part of a class of beneficiaries but not named, I would put his or her relationship to the deceased in brackets after the beneficiary’s name, e.g. grandchild, on the notice of an application for a certificate of appointment of estate trustee with a will (Form 74.7). Alternatively, I may set out the class of beneficiaries and list all the names of the individuals under the heading.
New Information Form when electronically filing Probate Applications
One last note of interest. In our blog last week, we shared the exciting news that effective October 6, 2020, Probate Applications may be filed electronically by email to the Court. This is a welcome step by Attorney General Doug Downey towards streamlining and expediting the Probate Application process. A new Information Form has been introduced which must be completed and emailed to the Court along with documents when electronically filing. One of the check boxes on the Information Form that the filer must confirm/agree to is that “The names of the deceased/trustee/beneficiaries in each document are exactly the same as stated in the will/codicil, or “also known as” names are indicated on all documents.” This seems to be a reminder of the importance of names and an effort to reduce related errors on Probate Applications.
I hope some of these tips are helpful. Thanks for reading.
 Disclaimer: This is an example only – the completion of the Court forms is dependent on the relevant facts and current rules and policies.