OBA members gathered virtually on June 16, 2021 for the Trusts and Estates Section’s last Brown Bag Lunch of the 2020-2021 term.
The meeting began with a conversation regarding the recent Sherman Estate v. Donovan, 2021 SCC 25 decision in which the Supreme Court of Canada lifted sealing orders made by the Court of Appeal. One attendee commented that in the past, with respect to probate applications, wealthy people could often obtain sealing orders as a form of security for the beneficiaries. However, in the Sherman Estate decision the SCC ruled that the sealing orders were unjustified as the “risks to privacy and physical safety cannot be said to be sufficiently serious”, affirming the open court principle.
Next, BBLers discussed some issues regarding cryptocurrency and Wills. Attendees considered whether executing a separate Will dealing with cryptocurrency could remain truly private from a primary Will when submitting it for probate. Some attendees suggested that the timing of execution of both Wills be carefully considered to avoid partial revocation of the primary Will resulting in eventual disclosure of the crypto Will.
The conversation then shifted to a comparison of certificates of appointment of estate trustee issued by the courts in Canada and the United States. One BBLer shared that in some U.S. states, the Will is not attached to the certificate or other document issued by the court when obtaining probate. Some attendees were of the view that we should adopt a similar practice in Ontario, as one result of doing so would be to avoid third parties becoming privy to Wills that they do not necessarily need to review in full. However, others felt that attaching the Will can be beneficial as the contents of the Will can be relevant and necessary, and may provide comfort to third parties dealing with the estate trustee in certain situations.
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