WHERE THERE IS A WILL (OR NOT), THERE IS A WAY

May 12, 2023

Welcome to the inaugural Casey & Moss Blog, where our team will be posting about estates, trusts, and capacity law issues every Friday.

The word “probate” is often heard in films and TV shows in the context of a deceased person and their estate… but what is probate, really? And who can apply for it?

Generally, in Ontario, probate is the court procedure to formally approve and recognize the Last Will and Testament as the valid Will of the deceased person, and/or to appoint an individual as the estate trustee (or “executor”) of a deceased’s person estate. The court issues a “Certificate of Appointment of Estate Trustee” to the estate trustee, which gives or confirms the estate trustee’s authority to act on behalf of the Estate.

The Certificate of Appointment of Estate Trustee can be obtained even if the deceased person did not have a Will. The application procedure is largely the same. However, there are differences in the applicant’s residency requirements and security or bond requirements, pursuant to the Estates Act.

In circumstances where the deceased person had a Will, the applicant would apply for a Certificate of Appointment of Estate Trustee With a Will, or “letters probate”. The legislation provides that probate shall not be granted to a non-resident of Ontario or non-resident of the Commonwealth unless the applicant posts security, or the court dispenses with security or reduces the amount of security.

Where the deceased person died without a Will, the applicant would apply for a Certificate of Appointment of Estate Trustee Without a Will, or “letters of administration”. Generally, the applicant must reside in Ontario and security must be posted. However, the court has the authority to put the residency requirement aside and appoint a non-resident of Ontario to administer the estate as it sees fit and on the appropriate terms, including terms about posting security.

What if the deceased person died with a Will but did not name an estate trustee, or the named estate trustee is unable or unwilling to act? The applicant would apply for “letters of administration with will annexed” as it’s called in the Estates Act. Similar to the requirements for a Certificate of Appointment of Estate Trustee Without a Will, the applicant must reside in Ontario, but the court has the residual authority to set aside the residency requirement.

There are other types of probate that can be obtained that this blog won’t touch on today, including “probate or letters ancillary” and “resealings” which have their own set of rules about residency and security. We will reserve these topics for a blog post for another day.

Thank you for reading our inaugural Casey & Moss blog post!

Zara Wong

 

Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer. 

EXCITING NEWS: CARA ZACKS HAS JOINED CASEY & MOSS LLP AS AN EQUITY PARTNER

Feb 3, 2023

Cara Zacks is an exceptionally skilled estates litigator with a passion for achieving the best possible outcomes for her clients. She has been an integral member of our team since 2018, and we are thrilled she has joined the partnership.
Cara can be reached at 647-494-0309 and at czacks@caseyandmoss.com.

Founded in 2016, Casey & Moss LLP is a Toronto-based law firm focused on estate, trust and capacity litigation and estate administration. We are ranked in Lexpert, Chambers, and Best Lawyers of Canada. Canadian Lawyer Magazine named us one of the Top 10 Wills, Trusts and Estates Boutique Law Firms in Canada.

ANGELA CASEY QUOTED IN “WHAT TO KNOW IF YOU PLAN TO CUT YOUR KIDS OUT OF YOUR WILL”, GLOBE AND MAIL ARTICLE

May 5, 2022

Angela Casey was recently quoted in the Globe and Mail article, “What to know if you plan to cut your kids out of your will”.

“Angela Casey, an estate litigator who is a partner at Casey and Moss, a boutique law firm in Toronto specializing in estate and power-of-attorney disputes, points out that the Ontario Court of Appeal has confirmed there is no obligation to leave anything to an independent child over 18.

“But if you have a child who is financially dependent on you, you have an obligation to provide for that child in your will, or in some other way,” she says.

For example, if you’ve been providing free housing to your children, they can argue they’re dependent and apply for relief under the province’s Succession Law Reform Act. Ms. Casey has seen this happen even in wealthy families where kids argue they “had always been on the ‘family payroll’ and they successfully brought a dependent support claim for millions of dollars.”

The most common ground of attack when an independent child is left out of a will is to challenge it as invalid. Ms. Casey says this can be because the parent was subject to undue influence, for example, manipulated by one of the other children, or because the parent didn’t have the mental capacity to understand the terms of the will, which can especially be argued as people age and their cognitive abilities decline.

The best way to protect against such attacks is to document your reasons, Ms. Casey says. This should be done by a lawyer with a good reputation who knows you fear that the will might be challenged.

“Spend the time and money before your death to safeguard your wishes,” she says.”

For the entire article, visit https://www.theglobeandmail.com/life/article-what-to-know-if-you-plan-to-cut-your-kids-out-of-your-will/

LAURA CARDIFF BECOMES PARTNER AT CASEY & MOSS LLP

Feb 22, 2021

Casey & Moss is pleased to announce that Laura Cardiff has joined the partnership! Laura joined us in 2017 and has since been an integral part of our team. Laura is an outstanding lawyer who is known for the passionate and dedicated representation of her clients. Congratulations Laura, and welcome to the partnership!
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