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Obtaining Probate During the COVID-19 Crisis

Keyboard with the word PROBATE on one of the keys with a hand pressing it. A led key is in resting on the keyboard.

The COVID-19 pandemic has wreaked havoc in our personal lives, work environment and throughout the economy. Much of what we used to do easily has taken on significantly more difficulty during the pandemic. Access to justice is also increasingly difficult, with the closure of courts to the public, and only urgent or consent civil matters being heard.

Our courts are needed for many important purposes, including one of the most fundamental and initial steps in the administration of estates: probate.

“Probate” is the process whereby a deceased person’s Will is validated so that the persons named as executors, can carry out the administration of the estate. When probate is granted, executors are given a “Certificate of Appointment of Estate Trustee With a Will” (also commonly called “probate certificate”), which they can produce to third parties as proof of their authority on behalf of the deceased’s estate.  Banks and other financial institutions insist on probate before they allow access to the deceased’s accounts and investments. Other third parties also insist on probate when dealing with executors, including the land registry office and the Canada Revenue Agency. Without probate, bank accounts and investments can be frozen, leaving families unable to access much needed funds; and many real estate transactions will be unable to close.

Probate takes on even more importance where a person has died without a Will. In these cases, there is no one with authority to access the deceased’s assets, and so applications need to be made to the court, to have a judge appoint an executor.

The good news is that courts are continuing to accept and process probate applications. When these applications are uncontested, they can for the most part, be processed by the court staff, even if courts are otherwise closed to the public.

Like many other things during our state of emergency, however, it will be more difficult to get probate applications through the door.

First, consider that original Wills still need to be filed with the court. People often store their original Wills in their lawyers’ office, or in their safety deposit box at the bank. Fortunately legal services are considered “essential”, and therefore it should still be possible to retrieve original Wills that are stored in law firms. Many bank branches however, have closed their doors to the public, and it may be difficult to get access to safety deposit boxes.

We also need to file an affidavit of execution from one of the witnesses to the Will. While it is our practice to swear these affidavits at the same time the Wills were signed, not every lawyer does so. If an affidavit of execution is needed, we will have to arrange for the affidavit to be sworn by one of the witnesses in the presence of a commissioner of oaths. With physical distancing measures being implemented this may also present some challenges. Fortunately virtual commissioning is now possible. However, both the affiant witness and the commissioner of oaths, will need to be comfortable that the Will is properly identified as the exhibit to the affidavit as part of this process. The commissioner of oaths will need the original Will to properly mark as an exhibit to the affidavit. It is not clear whether the witness will also need the have the original Will at the time of swearing the affidavit. Multiple virtual meetings will likely be required to complete this formerly straightforward step.

The probate application also contains an affidavit, which will need to be sworn by the executors. Both the affiant executors, and the commissioner of oaths, will need to be comfortable that the Will is property identified as an exhibit. Fortunately these affidavits can be sworn in counterpart, so if there are multiple executors, they won’t necessarily all have to come together to swear the affidavit. However, if you are sending the original Will to the executors when they swear the affidavit, then the original Will will need to be circulated to all of the executors, before it is returned to the lawyer for completion. This step is likely to also necessitate another round (or rounds) of virtual meetings, with the original affidavit and the original Will ultimately in the hands of the lawyer, for completion.

Once the original Will and affidavit of execution have made their way back to the lawyer they still need to make one more trip – to the court, where the application will be filed and processed. Lawyers will need to consider the logistics of delivering these original documents, and the payment of the estate administration taxes, to the courts in a secure manner, while the courts are closed to the public. Not all courts are accepting couriers for filing of documents.

It is important that lawyers make a notarial copy of the original Will before it leaves their office, so that if the original gets lost in transit, a copy can be proven before the court. Note however that while proving a copy of a Will is possible, it is fraught with its own difficulties and delays during this provincial emergency.

In the “good old days”, we could have a meeting with all of the executors and sign all of the documents at the same time. Now we need to consider arrangements to securely circulate the original documents among several parties. This will add to the time it takes to process such applications.

Before the COVID-19 pandemic, many of the courts in the Greater Toronto Area were taking 4 to 6 months to process probate applications. We can expect that it will take longer during this state of emergency.

Just heard about Pallett Valo being chosen as One of Ontario's Top Three Regional Firms. Congratulations – well deserved.
Peter Campbell, BDO Canada LLP