Early in 2020, the Ministry of the Attorney General introduced changes to modernize the operation of the Ontario Superior Court of Justice ("Court") throughout the province, in an effort to deal with the challenges brought on by the COVID-19 pandemic. On August 5, 2020, Attorney General Doug Downey sent a letter "to legal stakeholders and lawyers who practice estates law to seek feedback on ways to advance estates law in Ontario". An announcement was made this week by Minister Downey hinting that the estates community would be seeing changes that would "manage the estate process with less hassle and address the probate application backlog." Effective October 6, 2020, estate Court users now have the ability to electronically file Court documents to obtain a Certificate of Appointment of Estate Trustee ("Probate") and to receive Probate certificates electronically.
The bulletin entitled "Pandemics, Policy, Probate, Powers of Attorney and Private Client Services: We're Here to Help", provides that where an executor or administrator of an estate ("Executor") seeks to obtain Probate, it requires the preparation of certain Court documents. Once the Executor has prepared those documents, they need to be signed in the presence of a commissioner for taking oaths and affidavits. Prior to COVID-19, the Executor, with the commissioner's assistance, would finalize the package of Probate documents and the law firm representing them (if applicable) would then deliver and file the Probate documents with the applicable Court office. On March 23, 2020, the Court closed its doors to in-person filings, but still was accepting filings of Probate applications by mail or courier. In person counter service at all Court offices was reinstated in July 2020, but with reduced service hours.
The Consolidated Notice to the Profession, Litigants, Accused Persons, Public and the Media (the "Notice") provides that, effective October 6, 2020, Probate applications, supporting documents and responding documents may be filed electronically by email to the Court.
When electronically filing, certain Probate documents are required to be submitted to the Court by email only, e.g. the application and supporting documents (affidavits, consents, proof of death, renunciations, draft certificates, motions), while certain original Probate documents are to be filed with the court, e.g. wills, codicils, bonds, ancillary certificates and certified copies. The estate administration tax (or probate fees) payment must also accompany the original documents.
In addition, an Information Form has been introduced which must be completed and accompany the electronic submission. Other requirements for the electronic filing are set out in the Notice.
Rather than waiting for Probate to be received in the mail, or receiving notification that it can be picked up from the Court, it will be electronically issued by the Court and delivered by email to the address provided by the Executor.
Probate applications that were filed prior to October 6, 2020 may be electronically resubmitted to the Court. The resubmission will allow an application to retain its original position in the queue and allow for the electronic issuance of Probate.
The ability to electronically file Probate applications is a welcome step in modernizing and streamlining the process by which Probate in Ontario is obtained. We welcome the change and are hopeful that these changes will help reduce the current backlog our clients are seeing in some of the more populated jurisdictions. Stay connected with us as this area of estates law evolves.