Reg. 194 under the Courts of Justice Act (Rules of Civil Procedure)
O. Reg. 435/22
Bill or Act:
Courts of Justice Act
Summary of Decision:
This regulation was approved on April 20, 2022, and filed on April 26, 2022.
This regulation amending Reg. 194 under the Courts of Justice Act (Rules of Civil Procedure) is available online at: https://www.ontario.ca/laws/regulation/r22435
Analysis of Regulatory Impact:
There are no new administrative costs to business anticipated in relation to this proposal.
Summary of Proposal:
The regulation amends the Rules of Civil Procedure (RCP) to:
simplify the court process for probate applicants to address requirements relating to an estate administration bond and estate administration tax (EAT) deposit payment; and
make administrative amendments to estate court rules and court forms.
The amendments to 5 RCP rules and 10 forms will come into force on July 1, 2022.
1. Simplifying processes relating to estate bond and EAT requirements
The amendments include the following:
- authorize the making of requests on consent for an order to dispense with the requirement to post a bond or to reduce the amount of a bond through the probate application, while maintaining the ability to bring motions for such orders where there is no consent (new r. 74.11 (3) to (5)).
- clarify the documents that must be filed in support of such requests (new r. 74.11(6) and new sections in application forms 74A, 74.1A and 74J).
- clarify the requirements for an affidavit in support of such requests (new r. 74.11 (6)3).
- provide guidance on the circumstances in which a bond must be addressed, when the EAT deposit must be paid and the options to address the bond and tax requirements (new sections in application forms 74A, 74.1A and 74J).
- provide guidance on the terms of an order to address estate administration bond and/or EAT payment requirements (new content in Form 74I)
2. Administrative rule and form amendments
The amendments include the following:
Clarify the documents to be filed as part of a probate application. They clarify that:
- a copy of the Will and any codicils should be attached to the draft probate Certificate (Forms 74C or 74.1C) (amended r. 74.04(1)(c)) and 74.1.03(1)(c)); and
- any court order directing the issuance of a certificate of appointment should be filed (new r. 74.04(1)(c.1) and 74.1.03(1)(c.1)); and
- the original Will and any codicils should be attached and marked as an exhibit to an affidavit of execution, affidavit of condition or another affidavit proving execution of the Will (Forms 74D, 74E or 74F) (amended r. 74.04(1)(d) and 74.1.03(1)(d)).
require the disclosure of the reason an estate trustee named in the Will is not applying for a probate Certificate (amended Forms 74A and 74.1A)
clarify that a filer should include certain statements on a draft probate Certificate as applicable. For example, a statement that a person has renounced their right to a Certificate or that a person named as estate trustee in a Will has predeceased the testator (amended Forms 74C, 74.1C and 74.1F)
provide guidance on the document filing requirements for each Certificate type (amended Form 74J).
remove the court registrar's authority to make a mark on an original or copy of a Will or codicil and clarify that they may note certain terms of an order on the probate Certificate instead (amended r.74.12(5)(6)).
The changes are expected to:
make it easier and less costly for applicants to complete probate applications, to make requests relating to estate administration bonds and to address estate administration tax deposit requirements;
lead to fewer errors in probate applications, thereby facilitating the review and resolution of an application; and
allow court staff to more quickly determine whether 1) information or documentation is missing from an application and 2) an application requires consideration by a judge because it involves a request for an order.
Ministry of the Attorney General
Corporate Policy Unit
720 Bay Street, 3rd Floor
Toronto, ON M7A 2S9
July 1, 2022