Ontario Estate Administration: Probate, Wills, and Estate Trustees

Certificate of Appointment of Estate Trustee (Probate)

A Certificate of Appointment of Estate Trustee (commonly called “probate”) is issued by the Superior Court of Justice under the Estates Act and Rule 74 of the Rules of Civil Procedure. It confirms the validity of a will and the authority of the estate trustee to administer the estate.

When probate is required: Most financial institutions, land registry offices, and investment custodians will not transfer assets to an estate trustee without a Certificate. Real property cannot be transferred without probate unless there is a surviving joint tenant (who takes by right of survivorship, outside the estate). Some smaller financial accounts may be transferred without probate, but thresholds vary by institution.

Estate administration tax (EAT): Ontario charges estate administration tax (formerly called probate fees) on the value of the estate assets passing through the estate (i.e., not joint tenancy assets, designated beneficiary assets like RRSPs and life insurance, etc.). The rate is:

• $0 for the first $50,000 of estate value
• $15 per $1,000 (1.5%) for the value over $50,000

EAT is paid on filing the application. An estate trustee who discovers additional assets after the Certificate is issued must file a supplementary estate information return and pay additional EAT.

Estate information return: Since 2015, estate trustees must file an Estate Information Return (EIR) with the Ministry of Finance within 180 days of the Certificate being issued, itemizing all estate assets with fair market values as at date of death. Amended EIRs required if values change. Failure to file or false statements attract significant penalties under the Estate Administration Tax Act, 1998.

Will Formalities

Under SLRA s.4, a will is valid only if:

• In writing
• Signed at the end by the testator (or by someone in the testator's presence and by their direction)
• Signed in the presence of two or more witnesses present at the same time
• Each witness attests and subscribes the will in the presence of the testator

Holograph wills (SLRA s.6): A holograph will — entirely in the testator's own handwriting and signed by the testator — is valid without witnesses. Holograph wills are frequently challenged on the grounds that portions were typed or printed, or that the signature was ambiguous.

Electronic wills: Temporary COVID regulations permitted electronic will signing with remote witnesses. The Succession Law Reform Amendment Act (Wills), 2021 made electronic wills a permanent feature of Ontario law — wills may be made electronically and witnesses may appear by audiovisual technology, subject to prescribed conditions.

Testamentary capacity: The testator must have capacity at the time of execution: (1) understand the nature and extent of their property; (2) understand the natural objects of their bounty; (3) understand the nature of the act of making a will; and (4) be able to combine these elements to form an orderly desire regarding the disposition of their property (Banks v Goodfellow (1870), LR 5 QB 549, applied in Ontario).

Intestacy — Distribution Without a Will

Where a person dies without a valid will (or a will that does not dispose of all assets), the SLRA Part II governs distribution:

• Spouse only (no children): Entire estate to spouse. “Spouse” under the SLRA includes legally married spouses and, since 2021 amendments, common-law partners who have cohabited continuously for at least three years (or in a relationship of some permanence with a child).
• Spouse + children: Spouse receives the “preferential share” ($350,000 since 2021 amendments — increased from $200,000) plus one-third of the remainder if one child, or one-half of the remainder if two or more children. Children receive the balance equally.
• Children only (no spouse): Equally among children (including posthumous children). Children of a deceased child take their parent's share by representation (per stirpes distribution).
• No spouse or children: Parents equally; then brothers and sisters; then nephews and nieces; then next of kin.
• Escheat: If no next of kin found, the estate escheats to the Crown (Ontario) under the Escheats Act, 2015.

Note: Common-law partners were not included in the old SLRA intestacy rules. The 2021 amendments were a major change for common-law families in Ontario.

Estate Trustee Duties

The estate trustee (executor) has significant obligations:

• Duty to gather and protect assets: Take control of all estate assets promptly; preserve their value; insure property; collect debts owing to the estate.
• Duty to pay debts: Pay valid creditor claims before distributing to beneficiaries. Priority of claims: funeral expenses, secured debts, Crown claims, general creditors. Estate trustees who distribute before paying valid debts are personally liable to creditors.
• Duty to account: Pass accounts formally if required or if a beneficiary demands it. Formal passing of accounts is a court proceeding under Rule 74.18 where the estate trustee presents accounts and any interested person may object.
• Duty to invest prudently: Under the Trustee Act s.27, the prudent investor standard — the estate trustee must exercise the care, skill, diligence, and judgment that a prudent investor would exercise in managing an investment portfolio.
• Trustee compensation: Trustees are entitled to fair and reasonable compensation (Trustee Act s.61). The traditional 5% guideline (2.5% capital receipts, 2.5% capital disbursements, 2/5ths of 1% of annual average market value of assets as care and management fee) is a rough guide, not a fixed entitlement.

Dependant's Relief

Part V of the SLRA allows a court to order support out of an estate for a “dependant” who was not adequately provided for by the deceased's will or by the intestacy rules:

Who is a “dependant” (SLRA s.57): A spouse, parent, child, or sibling of the deceased, to whom the deceased was providing support or was under a legal obligation to provide support immediately before death.

Application deadline: Application must be commenced within 6 months of the Certificate of Appointment being issued (SLRA s.61(1)). This is a hard limitation period — courts have little discretion to extend it.

Factors considered (SLRA s.62): The court considers the nature and duration of the relationship, the dependant's current and future needs and means, the deceased's legal obligations to the dependant, the testator's reasons for not providing support, and the competing interests of other beneficiaries.

Common-law partners: The 2021 SLRA amendments added common-law partners as “spouses” for dependant's relief purposes — an important change for long-term common-law relationships.

Will Challenges

The most common grounds to challenge a will's validity:

• Lack of testamentary capacity: The testator lacked capacity at time of execution (Banks v Goodfellow test). Medical evidence and contemporaneous solicitor's notes of the preparation meeting are key.
• Undue influence: The testator's free will was overcome by another person. The test is whether the influence amounted to coercion — mere persuasion, family pressure, or natural affection is not undue influence. Presumption of undue influence arises where the beneficiary was in a position of dominance over the testator.
• Fraud: The will was procured by fraudulent misrepresentations that induced the testator to make dispositions they would not otherwise have made.
• Forgery: The will or testator's signature is forged.
• Formal invalidity: Failure to comply with the SLRA will formalities (signature, witnesses). Courts have discretion under SLRA s.21.1 (enacted 2021) to cure a formal deficiency if the court is satisfied the document reflects the testamentary intentions of the deceased — a significant new power.

The Golden Rule: Where a testator is elderly, ill, or otherwise vulnerable, the solicitor preparing the will should obtain a medical assessment of capacity and document instructions carefully. Failing to follow the Golden Rule does not automatically invalidate the will but creates evidentiary problems in litigation.

Estate Litigation Limitation Periods

• Dependant's relief: 6 months from Certificate of Appointment
• Will challenge (declaration of invalidity): Generally 2 years from discovery (Limitations Act 2002), but the discoverability rule means the period may not run until the challenger knew or ought to have known of the claim
• Breach of fiduciary duty / passing of accounts: 2-year limitation, but courts retain equitable jurisdiction for passing of accounts claims

Summary

Ontario estate administration involves strict procedural requirements — probate application, estate administration tax, estate information return — and substantive duties of the estate trustee. The 2021 SLRA amendments significantly changed the intestacy and dependant's relief rules by including common-law spouses, increased the preferential share to $350,000, and introduced the curative provision for formal defects in wills. Practitioners advising estate trustees or challenging wills must carefully track the 6-month dependant's relief deadline and document capacity assessments thoroughly.

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