The recent changes to Rules 74, 75, 75.1 and the creation of new Rule 75.2 represent housekeeping amendments as well as substantive changes to clarify and expedite court processes for applications for a Certificate of Appointment as Estate Trustee, Exemplification Certificates, devolution of executorship and Court Status Certificates.
Additional changes and amendments have been made to Rule 74 as it relates to passings of accounts.
Rule 75.1 and new Rule 75.2 deal with mediation in estates matters and clarify the ability to obtain to obtain court-ordered mediation in matters where it is not currently a mandatory process in estate litigation.
New forms have been created and amendments made to existing forms, which will be mentioned here.
The effective date of the amendments have been phased in, but all amendments will be in force as of January 1, 2016.
Applications for Certificates
Rule 74.01: A new definition has been added for “proof of death”, which now includes a court order declaring a person to be deceased under the Declarations of Death Act, in addition to the existing death certificate issued by the Registrar General or a certificate issued by a funeral director. Proof of death must be provided to the registrar to withdraw a Will on deposit with the Court [Rule 74.02(7)], and upon an application for a Certificate of Appointment as Estate Trustee: Rules 74.04 and 74.05.
Special Certificates
New Rule 74.14.1 provides for authentication by the registrar of a certificate of appointment by the issuance of a certificate of grant for use in Canada, or an exemplification certificate, to be signed by the registrar and a judge, for use outside Canada.
Rule 74.14.2 sets out the required documents to be filed for a court status certificate, signed by the registrar, confirming the status of a person as an estate trustee, under the following circumstances:
- Devolution of executorship due to the death of an estate trustee with a Will;
- Death of an estate trustee where one or more surviving estate trustees continue to be authorized to act;
- A court order resulting in a change of estate trustees; or
- There has been no change of estate trustees.
Subrules 74.14.2(3), (4) and (5) list the documents required to obtain the court status certificate under these circumstances.
Passings of Accounts
New Rule 74.18(3.2) clarifies that an attorney for property and a guardian of property shall be served, on behalf of a person who has a contingent or vested interest in the estate, with the Application Record and draft Judgment in support of a passing of accounts. Service must be effected on all parties at least 60 days before the hearing date specified in the notice of application: Rule 74.18(4). If the person to be served is outside Ontario, service must be made at least 75 days before the hearing date specified in the notice of application: Rule 74.18(5).
Note that the estate rules now distinguish between the “date specified in the notice of application” and the “hearing date of the application”. This clarifies that the date in the notice of application is unlikely to be the actual hearing date of the application.
Where a person with a contingent or vested interest in the estate is under a disability or unknown, the Court may appoint someone to represent the person if: (a) neither the Public Guardian and Trustee nor the Children’s Lawyer is authorized under any Act to represent the person; and (b) there is no litigation guardian to act for the person on the passing of accounts: Rule 74.18(6). This provides representation for incapable adults who have no guardian or attorney and no other person who is able and willing to act as his or her litigation guardian; or beneficiaries who are minors; unborn or unascertained beneficiaries (as last resort, the Children’s Lawyer); and absentees (as last resort, the Public Guardian and Trustee).
Notices of Objection to Accounts must be served 35 days before the hearing date specified in notice of application: Rule 74.18(7). (Except for the PGT and OCL, who must comply 30 days before the hearing date: Rule 74.18(8.3).)
Rule 74.18(8.1) lists the rights which attach to the person who serves a Request for Further Notice – receive notice of further steps, receive documents, file materials relating to costs, participate at a hearing but only with respect to a request for increased costs. A person who fails to file a Notice of Objection or a Request for Further Notice (new Form 75.45.1) is not entitled to any further notice or documents, cannot file material or be heard or participate at a hearing: Rule 74.18(8.2).
The Children’s Lawyer and the Public Guardian and Trustee have specific filing obligations at least 30 days before the hearing date specified in the notice of application. Specifically, if served with the Application Record and draft Judgment in support of the passing, the Children’s Lawyer or the Public Guardian and Trustee must serve a Notice of Objection to Accounts; a Request for Further Notice; a Notice of No Objection to Accounts; or a Notice of Non-Participation in the passing: Rule 74.18(8.3).
A Notice of Withdrawal of Objection may be filed by any person who objected at least 15 days before the hearing date of the application: Rule 74.18(8.4).
Passing without a Hearing
New Rule 74.18(8.5) avoids the requirement for a hearing if no Notices of Objection are filed or they are withdrawn 15 days before the hearing date of the application. In addition, if at least 5 days before the hearing date of the application, the applicant files a record containing the documents listed in Rule 74.18(9), the Court may grant a judgment on the passing without a hearing. This includes passings of accounts where there is one or more Requests for Increased Costs, which formerly required a hearing.
Contested Passings of Accounts
Rules 75.18(11.5) to 74.18(13) set out specific directions where one or more Notices of Objections has been filed and not withdrawn at least 15 days before the hearing date of the application (Rule 74.18(8.4)). This includes serving a consolidation of all the remaining Notices of Objection to accounts and the Reply (Rule 74.18 (11.5)), and a record containing Notices of Objection, late Notices of Withdrawal, Requests for Further Notice, Requests for Costs, Requests for Increased Costs and a draft order for directions or Judgment.
In a contested passing of accounts, the Court may order that the passing or any issue proceed to trial and give directions: Rule 74.18(13.1). Under Rule 74.18(13.2), the Court may give directions regarding mediation if the matter is governed under Rule 75.1 or order that a mediation session be conducted under new Rule 75.2. If mediation does not resolve all the issues in dispute, the matter shall proceed in accordance with the directions given under Rule 74.18(13.1).
Costs
A Request for Costs or Request for Increased Costs must be served at least 10 days before the hearing date of the application: Rule 74.18(8.6). Where the applicant seeks increased costs above the amount allowed by Tariff C, the applicant must serve at least 15 days before the hearing date of the application, a Request for Increased Costs and a Costs Outline (Form 57B). As previously stated, these Requests for Increased Costs may be dealt with by the Judge without a hearing on an uncontested passing, or during the hearing at a contested passing of accounts.
Contested Estate Proceedings
New Rule 75.06(3.1) gives the Court discretion to give directions under subrule 75.1.05(4), if the proceeding is subject to Rule 75.1 (mandatory mediation rule); or, if not subject to Rule 75.1, order a mediation session to be conducted in accordance with new Rule 75.2, including any directions for the conduct of that mediation. If mediation does not resolve all of the issues in dispute, the matter shall proceed in accordance with the directions given under Rule 75.06.
Court-Ordered Estate Mediation: New Rule 75.2
New Rule 75.2 is a complete code for estate mediation which does not fall under the mandatory mediation rule 75.1. There are slight differences between the rules, as mediation ordered under Rule 75.2 may occur anywhere in Ontario, and therefore, no “mediation co-ordinator” is involved in the process. Hopefully, those regions which have not been subject to mandatory mediation will be able to take advantage of the new settlement opportunities made available under this new Rule.
Forms
Form 74.12.1 is a new form of Consent to an application for a certificate of appointment as estate trustee limited to the assets referred to in the Will.
New Form 74.45.1 is a Request for Further Notice in Passing of Accounts, which must be served at least 35 days before the hearing date specified in the notice of application. Such a notice is to be served only where the person with an interest in the estate does not object to the accounts but wishes to receive notice of any further step in the application.
Reply to Notice of Objection to Accounts is new Form 74.49.4.
Form 74.13.2 is the form of Order granting the Certificate of Appointment as Estate Trustee with a Will Limited to the Assets Referred to in the Will.
Amendments have also been made to other existing forms, including Applications for Certificates with a Will, Forms 74.4 and 74.4.1, Forms 74.5 and 74.5.1; Applications for Certificates of Appointment without a Will, Forms 74.15 and 74.15; Form 74.7 (Notice of Application for a Certificate of Appointment); Form 74.12.1 (Consent to Appointment of Estate Trustee with a Will Limited to the Assets Referred to in the Will); Certificates of Appointment of Estate Trustee with a Will and Limited to the Assets Referred to in the Will, Forms 74.13 and 74.13.1; Certificates of Appointment of Succeeding Estate Trustee, Forms 74.23 and 74.23.1; and Confirmation of Re-sealing, Form 74.28.
All of the amendments to Rules 74 and 75 are available online at: http://www.ontario.ca/laws/regulation/900194
About the Author
Laurie S. Redden, Office of the Public Guardian and Trustee
This paper was first presented at the 18th Annual Estates and Trusts Summit on October 7, 2015 at the Law Society of Upper Canada, at Toronto, ON.