Update from the Estates List Users Committee

Since the regular operations of the Ontario Superior Courts were suspended on March 17, 2020, some of the procedural changes seen include remote hearings and electronic filings (the full list of Notices to the Profession issued by the Ontario Superior Court may be viewed here). As the legal profession continues to adapt to these new norms, below is a summary of some of the changes that affect estates practitioners in particular.

1. Probate Applications

The courts are now accepting wills that have been witnessed remotely and signed in counterparts. LawPRO has updated their FAQ section to provide a fulsome review of new requirements for valid will execution, including virtual witnesses and signing in counterpart.

However, the standard form affidavit of execution (which states that both witnesses were in the physical presence of the testator) has not been changed. As a temporary fix, practitioners are encouraged to swear a supplemental affidavit, be filed with the probate application, clarifying that the witnesses were present remotely.

Remember that the original will must be submitted as part of the probate application – the court will not accept notarial copies and an undertaking to provide the original will at a later date.

In order to address clients’ concerns about sending money orders in the mail, payment of the deposit equal to the estate administration tax can be made by law firm cheque rather than bank draft if the applicant prefers.

If there is an error notice, it will continue to be sent out by regular mail or email (if an email address is provided). If the applicant needs to file fresh documents, this can be done by mail, courier, or process server. If documents have to be returned, the court office, upon request from the filer, will only return the original will, codicils, and affidavits of execution, not any other filed documents. (Note: if a process server is attending at the court office to retrieve these documents, the process server must provide a written request or other form of proof confirming that the filer is requesting that the original testamentary documents should be removed from the court file.)

2. Hours and Operations of the Court Office

For the delivery of non-urgent matters, couriers, process servers, and parties are being directed to drop off documents on the 8th floor of 330 University Ave. at the File Administration Office window (to be clear, this is a change from past practice of filing materials at the civil filing office or the estates office). Office hours are 10 am to 12 pm and 2 pm to 4 pm. If you arrive outside of those hours (but within regular business hours), there is a sign with a number to call and someone will come out to meet you.