In some jurisdictions, the original will cannot be released for any reason. How to proceed?
Folk wisdom, such as “Hindsight is 20/20,” applies to many aspects of trust and estate administration. Other jurisdictions may have very different laws than those in Ontario that affect the will, as well as executors and beneficiaries.
Typically, these differences add costs and delay to the administration of an estate with cross-border connections.
The Situation
Mister Bull was a U.K. citizen resident in France at the time of his death. He made a French will appointing a French resident as his executor, Madame Curie, which disposed of all of his worldwide property, including a modest Ontario bank account that he owned at his death.
The will was administered in France according to French legal process by the French Notary, Monsieur Lupin. M. Lupin, among other tasks, verified the deceased’s will and provided a “déclaration de succession.”
As part of this process, M. Lupin was given Mr. Bull’s original will, which cannot be released for any reason under the applicable French legal rules.
Ontario court rules, however, require the original will be filed with the court for an original probate application.
If the will has been probated in another jurisdiction, an ancillary or resealing probate application is made to the Ontario court, which does not require the original will.
Ontario probate is typically required by financial institutions where the deceased account holder’s executor is not a resident of Canada.
Mr. Bull’s Canadian financial institution confirmed that Mme. Curie would need an Ontario probate certificate to provide her with the authority to deal with his bank account, even though the account was not large.
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