Does an estate trustee have to apply for probate in order to represent the estate before an administrative tribunal? Two administrative tribunals – the Workplace Safety Insurance Appeal Tribunal and the Humans Rights Tribunal have taken different positions.
An estate trustee does not always require probate (the formal term is a certificate of appointment of estate trustee with a will). There are many good reasons for an estate trustee to not seek probate. Aside from having to pay a lawyer to prepare the application, the estate will have to pay probate fees (estate administration tax). Another reason is that certain administrative tribunals will require probate in order to hear the estate trustee.
The Workplace Safety Insurance Appeal Tribunal has a helpful and comprehensive practice direction which sets out what happens when a party is deceased. Where there is a will, the tribunal will not require a certificate unless there are circumstances which require it to do so – e.g. if there appears to be an issue as to the validity of the will. If there is no will, the tribunal does not normally require a certificate. Instead, the tribunal requires the consent of all of the intestate beneficiaries as well as a signed and witnessed letter from the representative that all immediate beneficiaries have been contacted. If not all beneficiaries consent, the tribunal will deal with who should represent the worker’s estate on a case-by-case matter.
By contrast, the Human Rights Tribunal requires that a certificate be obtained – both where there is and is not a will. Vice-Chair Pickel concisely summarized the rationale for this policy in Donaldson v. Waters Edge Care Community, 2017 HRTO 137. The tribunal had no way of confirming that the documents are valid legal documents or that the will provided was not revoked and replaced with a different will. “By requiring a Certificate,” the Vice-Chair ruled, “the Tribunal ensures that in all cases the person seeking to represent a party’s estate in fact has the authority to act on behalf of the estate as a trustee.”
The Human Rights Tribunal’s policy is defensible – after all, they are experts in human rights, not estates law. However, the Human Rights Tribunal should consider whether there is any benefit in adopting a more contextual policy similar to WSIAT. After all, an estate trustee’s powers do not come from probate, but from the will. If a person seeking redress for an alleged violation of their human rights dies, their estate should be able to continue their complaint. If obtaining probate would cause the estate undue hardship, the Human Rights Tribunal should consider analyzing whether probate is necessary and proceed on a case-by-case basis.