All About Estates

Surprise…More Big Changes Coming to Estate Administration

Today’s blog was written by Sandra Arsenault, Law Clerk at Fasken LLP

“Change is the only constant” – Heraclitus.

How is it possible that in one of the most traditional areas of law we are about to see even more big changes come into effect?

Just as we get used to virtual witnessing, digital signatures, email service of documents, small estates certificates and e-filing, the Rules are literally changing again.

A recent Notice to the Legal Profession[1] announced that O.Reg. 709/21, which was filed on October 15, 2021,[2] further amends Reg. 194 under the Court of Justice Act (the Rules of Civil Procedure).

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.

Service on beneficiaries and filing of the Application itself, renamed Form 74A, will now be required replacing the current process of serving a Notice of Application (Form 74.7 or Form 74.17) and then filing the Application (74.4 or variation) along with a copy of the Notice and an Affidavit of Service (Form 74.6).

These Rule 74 and Rule 75 changes model the approach to the new Rule 74.1 small estates process that was introduced on April 1, 2021 through O. Reg. 111/21.

The purpose of this revised procedure for traditional probate applications is to:

  • reduce costs;
  • simplify the process by reducing the number of forms;
  • make forms easier with simpler format, larger font and fillable text boxes and improved guiding;
  • allow for easier identification of the forms by using alpha-numerically (e.g. Form 74A through 74P); and
  • expedite processing of applications by court staff. [3]

The 8 new court forms and 15 amended forms must be filed starting Tuesday January 4, 2022. The forms can all be accessed online on the Ontario court forms website. [4]

I suspect these new forms will be easier for individuals with little to no estate administration experience, which is the ultimate goal. For those of us with existing knowledge, we have some unlearning to do.

[1] https://thelcla.ca/uncategorized/oct-15-2021-427-pm-notice-to-legal-profession-regarding-amendments-to-the-rules-of-civil-procedure-o-reg-709-21/

[2] https://www.ontario.ca/laws/regulation/R21709

[3] https://www.ontariocanada.com/registry/view.do?postingId=39310&language=en

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

About Maureen Berry
Maureen Berry is a partner in the Trusts, Wills, Estates and Charities group at Fasken. Maureen’s practice is focused on wills, estate planning, domestic and international trusts, private corporation taxation, and executive compensation. Maureen also advises charities and non-profit organizations. Working with Canadian and international families, firms, corporations and charitable organizations, she provides advice on all aspects of private client matters. She is a leading expert in the fields of tax law and estate planning. As an Adjunct Professor at Osgoode Hall Law School, she teaches Advanced Estate Planning. Maureen has previously taught corporate tax and international tax at the University of Toronto and Western University, along with the Bar Admission course for up-and-coming lawyers.

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