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O. Reg. 111/21: RULES OF CIVIL PROCEDURE

filed February 12, 2021 under Courts of Justice Act, R.S.O. 1990, c. C.43

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ontario regulation 111/21

made under the

Courts of Justice Act

Made: January 28, 2021
Approved: February 4, 2021
Filed: February 12, 2021
Published on e-Laws: February 12, 2021
Printed in The Ontario Gazette: February 27, 2021

Amending Reg. 194 of R.R.O. 1990

(RULES OF CIVIL PROCEDURE)

1. Subrule 4.02 (1.1) of Regulation 194 of the Revised Regulations of Ontario, 1990 is amended by striking out “in proceedings under Rules 74 and 75” at the end and substituting “in a proceeding under Rule 74, 74.1 or 75”.

2. Subrule 14.01 (2.1) of the Regulation is amended by adding “or 74.1” after “Rule 74”.

3. Subrule 14.06 (4) of the Regulation is amended by striking out “to proceedings under Rules 74 and 75” at the end and substituting “to a proceeding under Rule 74, 74.1 or 75”.

4. Subrule 37.13 (4) of the Regulation is amended by striking out “to motions under Rules 74 and 75” at the end and substituting “to a motion under Rule 74, 74.1 or 75”.

5. Subrule 38.09 (7) of the Regulation is amended by striking out “Rule 74” at the end and substituting “Rule 74 or 74.1”.

6. Subrule 38.10 (4) of the Regulation is amended by striking out “and Rule 75” at the end and substituting “or Rule 74.1 or 75”.

7. Rule 74.01 of the Regulation is amended by striking out “in Rule 75” in the portion before the definitions and substituting “in Rules 74.1 and 75”.

8. The Regulation is amended by adding the following Rule:

Rule 74.1  Small Estates — Non-Contentious Proceedings

Definition, Small estate

74.1.01 In this Rule and in Rules 75, 75.1 and 75.2,

“small estate” means a small estate within the meaning of the Estates Act.

Application of Rule

74.1.02 (1) In the case of an estate that is a small estate, a person may apply for a small estate certificate under this Rule instead of applying for a certificate of appointment of estate trustee under Rule 74, in which case this Rule applies instead of rules 74.04 to 74.11 and 74.14.

Continued Application of Rule 74

(2) If a person proceeds under this Rule, Rule 74, other than rules 74.04 to 74.11 and 74.14, continues to apply with respect to the small estate, with the following and any other necessary modifications:

1. A reference in that Rule to an application for a certificate of appointment of estate trustee shall be read as a reference to an application for a small estate certificate under this Rule.

2. A reference in that Rule to a certificate of appointment of estate trustee shall be read as a reference to a small estate certificate under this Rule.

Application for Small Estate Certificate

74.1.03 (1) A person may seek a small estate certificate by filing an application for a small estate certificate (Form 74.1A) together with,

(a) a request to file an application for a small estate certificate or an amended small estate certificate (Form 74.1B);

(b) proof of death;

(c) a draft small estate certificate (Form 74.1C);

(d) if there is a will, the original of the will and of any codicils, together with the following evidence of due execution of the will and each codicil:

(i) if the will or codicil is not in holograph form,

(A) an affidavit of execution (Form 74.8) of the will or codicil,

(B) if the will or codicil contains an alteration, erasure, obliteration or interlineation that has not been attested, an affidavit as to the condition of the will or codicil at the time of execution (Form 74.10), or

(C) if each of the witnesses to the will or codicil has died or cannot be found, such other evidence of due execution as the court may require, or

(ii) if the will or codicil is in holograph form, an affidavit attesting that the handwriting and signature in the will or codicil are those of the deceased (Form 74.9);

(e) any security required by the Estates Act; and

(f) such additional or other material as the court directs.

Notification of Other Persons Required Before Filing

(2) An application for a small estate certificate may not be filed by a person until at least 30 days after the person has met the requirements of subrules (3) to (7), as applicable.

Persons Entitled to Share in Distribution

(3) The applicant shall send or give the following documents to each person entitled to share in the distribution of the estate, including charities and contingent beneficiaries:

1. A copy of the application for a small estate certificate (Form 74.1A) and of any attachments.

2. If there is a will, a copy of the will and of any codicils.

Same, Minor

(4) If a person who is entitled to share in the distribution of the estate is less than 18 years of age, the documents listed in subrule (3) shall not be sent to the person but shall instead be sent or given to a parent or guardian and to the Children’s Lawyer.

Unborn or Unascertained Persons

(5) If there may be unborn or unascertained beneficiaries, the documents listed in subrule (3) shall be also sent or given to the Children’s Lawyer.

Mentally Incapable Person

(6) If a person who is entitled to share in the distribution of the estate is mentally incapable within the meaning of section 6 of the Substitute Decisions Act, 1992 in respect of an issue in the proceeding, the documents listed in subrule (3) shall also be sent or given,

(a) if there is a guardian with authority to act in the proceeding, to the guardian;

(b) if there is no guardian with authority to act in the proceeding but there is an attorney under a power of attorney with authority to act in the proceeding, to the attorney; or

(c) if there is neither a guardian nor an attorney with authority to act in the proceeding, to the Public Guardian and Trustee.

Method of Sending Documents

(7) Documents listed in subrule (3) may be sent to a person either by e-mail to the person’s last known e-mail address or by regular lettermail or courier to the person’s last known address.

Issuing a Small Estate Certificate

74.1.04 (1) The registrar may issue a small estate certificate in Form 74.1C,

(a) if the registrar is satisfied that,

(i) issuance is not prevented under section 16 of the Estates Act,

(ii) the applicant has provided evidence that, as of the date of death, the estate is a small estate,

(iii) the application for the small estate certificate contains the information, evidence and supporting documentation required by these rules or under any Act, and

(iv) the applicant has met the requirements of subrule 74.13 (1) or (2), or has obtained an order under subsection 4 (1) of the Estate Administration Tax Act, 1998; or

(b) if directed to do so by a judge.

Request by Registrar

(2) In making a determination for the purposes of clause (1) (a), the registrar may request that the applicant provide to the registrar any required information, or file any required evidence or documentation.

Refusal

(3) If the registrar is not satisfied that the conditions set out in clause (1) (a) have been met, the registrar shall, subject to subrule (4), refuse to issue the certificate.

Referral to Judge

(4) The registrar shall refer an application for a small estate certificate to a judge for determination if, in the registrar’s opinion, the application raises an issue that requires determination by a judge.

Notice of Refusal

(5) If the registrar refuses under subrule (3) to issue the certificate, the registrar shall send a notice in Form 74.1D to the applicant or the applicant’s lawyer by,

(a) regular lettermail to the mailing address shown in the application; or

(b) e-mail to the e-mail address most recently indicated for the applicant or the applicant’s lawyer in the applicable court file, if any, or, in the case of a lawyer whose e-mail address is not indicated in the court file, the e-mail address for the lawyer as published on the Law Society of Ontario’s website.

Amending a Small Estate Certificate

74.1.05 (1) If, after a small estate certificate is issued, additional assets of the estate are discovered but the estate continues to be a small estate, the estate trustee named in the certificate may seek to obtain an amended small estate certificate by filing an application to amend the small estate certificate (Form 74.1E), together with,

(a) a request to file an application for a small estate certificate or an amended small estate certificate (Form 74.1B);

(b) a copy of the issued small estate certificate;

(c) a draft amended small estate certificate (Form 74.1F), listing both the assets listed in the small estate certificate and the additional assets;

(d) any security required by the Estates Act; and

(e) such additional or other material as the court directs.

Notification of Other Persons Required Before Filing

(2) Subrules 74.1.03 (2) to (7) apply, with necessary modifications, with respect to the filing of an application for an amended small estate certificate.

Issuance

(3) Rule 74.1.04 applies, with necessary modifications, with respect to the issuance of an amended small estate certificate.

Revocation of Original Certificate

(4) A small estate certificate for an estate is deemed to have been revoked on the issuance of an amended small estate certificate for the estate.

Limit on Further Amendments

(5) An estate trustee who is issued an amended small estate certificate may only seek a further amended small estate certificate on motion to a judge.

Estate Ceases to be Small Estate

74.1.06 (1) If, after a small estate certificate or amended small estate certificate is issued, additional assets of the estate are discovered and the estate ceases to be a small estate, the estate trustee named in the certificate may make an application for a certificate of appointment of estate trustee under Rule 74.

Revocation of Small Estate Certificate

(2) A small estate certificate or amended small estate certificate for an estate is deemed to have been revoked on the issuance of a certificate of appointment for the estate under Rule 74.

9. Rule 75 is amended by adding the following rule:

Application of Rule to Small Estates

75.01.1 This Rule applies to small estates, with the following and any other necessary modifications:

1. A reference in this Rule to an application for a certificate of appointment of estate trustee shall be read as a reference to an application for a small estate certificate or an amended small estate certificate, as the case may be, under Rule 74.1.

2. A reference in this Rule to a certificate of appointment of estate trustee shall be read as a reference to a small estate certificate or an amended small estate certificate, as the case may be, under Rule 74.1.

10. (1) Subclause 75.1.02 (1) (b) (i) of the Regulation is amended by adding “including in respect of a small estate” at the end.

(2) Subclause 75.1.02 (1) (b) (ii) of the Regulation is amended by adding “including in respect of a small estate” at the end.

11. Rule 75.2.01 of the Regulation is amended by striking out “be conducted” at the end and substituting “be conducted, including in respect of a small estate”.

12. Clause 77.02 (2) (b) is amended by striking out “Rules 74 and 75” and substituting “Rule 74, 74.1 or 75”.

13. (1) The rows for Forms 74.36, 74.37, 74.38, 74.40, 74.41, 75.1, 75.2, 75.3 and 75.4 in the Table of Forms to the Regulation are amended by striking out the date in the Column titled “Date of Form” and substituting “November 1, 2020”.

(2) The Table of Forms to the Regulation is amended by adding the following rows:

 

74.1A

Application for a Small Estate Certificate

November 1, 2020

74.1B

Request to File an Application for a Small Estate Certificate or an Amended Small Estate Certificate

November 1, 2020

74.1C

Small Estate Certificate

November 1, 2020

74.1D

Registrar’s Notice to Applicant in an Application for a Small Estate Certificate or Amended Small Estate Certificate

November 1, 2020

74.1E

Application to Amend Small Estate Certificate

November 1, 2020

74.1F

Amended Small Estate Certificate

November 1, 2020

 

Commencement

14. This Regulation comes into force on the later of the day subsection 1 (3) of Schedule 8 to the Smarter and Stronger Justice Act, 2020 comes into force and the day this Regulation is filed.

Made by:
Pris par :

Civil Rules Committee:
Le Comité des règles en matière civile :

Alison Warner

Senior Legal Officer / Avocate principale
Secretary of the Civil Rules Committee / Secrétaire du Comité des règles civiles
Court of Appeal of Ontario

Date made: January 28, 2021
Pris le : 28 janvier 2021

I approve this Regulation.
J’approuve le présent règlement.

Le procureur général,

Doug Downey

Attorney General

Date approved: February 4, 2021
Approuvé le : 4 février 2021

 

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