New Year, New Forms!
By: Heather E. Watson with contributions of Sam Beuerle, Student-at-Law
As you likely already know, there are new court forms for estate administration coming into effect as of January 1, 2022 pursuant to Ontario Regulation 709/21 made under the Courts of Justice Act in October of 2021. This regulation is not to be confused with other amendments that also come into effect on January 1, 2022 pursuant to the Accelerating Access to Justice Act, 2021. The new forms are available on the Ontario Court Forms website and this article is meant to serve as a summary of the main changes with respect to the most used estate administration court forms.
Application for Certificate
Previously, there were individual application forms for each circumstance (ie, with a Will, without a Will, and for assets limited to those referred to in the Will). Now, there is one form to use for all these types of applications: Form 74A. The new form 74A is used whether the applicant is an individual or a corporation. There is still a separate form for “small estates”, discussed below.
There is a new option for marital status, namely, whether there is a common law spouse surviving. Also, if the deceased was legally married, then there is now a question as to whether a separation prior to the death occurred (as defined in ss. 17 and 43.1 of the Succession Law Reform Act). Also, since marriage will not revoke a Will after January 1, 2022, this question has been changed.
There is no more “notice of application” form. Instead, the new application (Form 74A) is what gets served on the beneficiaries rather than a separate notice. This means that the beneficiaries will see the value used for the purposes of the application for certificate, and care should be taken to explain whether the values are actual or estimated to prevent confused or disgruntled beneficiaries from filing unjustified objections.
The individual application forms previously used for applications for succeeding estate trustee, foreign estate trustee nominee, estate trustee during litigation, resealing, and ancillary certificates have all been replaced by the singular Form 74J.
Note that the reason for the entitlement to apply must be listed. Also, values will be needed, either for the undistributed estate assets if applying for a succeeding appointment, or for the value of estate assets located in Ontario for the other types of appointment.
As above, there is still an individual application form for “small estates” (Form 74.1A) which remains substantively unchanged from the existing application form.
The request to file an application for small estate and application to amend small estate certificate (Forms 74.1B and 74.1E, respectively) have been changed to include a new category of interested party entitled to service, being “unborn or unascertained” individuals. Service on any unborn or unascertained individuals with an interest or potential interest in the estate is affected by giving notice to the Office of the Children’s Lawyer. There were no other substantive changes.
The small estate certificate and amended small estate certificate have been revised to include reference to “codicils” and there are no other substantive changes.
The overarching theme to these new estate court forms is to simplify and to make them more user-friendly. For example, the font is bigger, and the layout of the forms has become more visually inviting. Also, the number of forms has been reduced which will hopefully prevent or eliminating lay persons from using improper forms. Hopefully, this will aid the Court in terms of how long it takes to process applications and other estate administration documents.
Still, the public (and estates practitioners) should always exercise care in completing these new forms and practitioners should be cautious about relying on software that populates these forms since errors can still occur.
Heather E. Watson is associate lawyer with Agro Zaffiro LLP. She has been practising since 2017 and her areas of focus are estate planning, estate administration, and estate litigation.
Samuel Beuerle is a student-at-law and is currently completing his articles with Agro Zaffiro LLP.