O. Reg. 709/21: RULES OF CIVIL PROCEDURE, Filed October 15, 2021 under Courts of Justice Act, R.S.O. 1990, c. C.43
ontario regulation 709/21
made under the
Courts of Justice Act
Made: October 7, 2021
Approved: October 13, 2021
Filed: October 15, 2021
Published on e-Laws: October 15, 2021
Printed in The Ontario Gazette: October 30, 2021
Amending Reg. 194 of R.R.O. 1990
(RULES OF CIVIL PROCEDURE)
1. The definition of “certificate of appointment of estate trustee” in subrule 1.03 (1) of Regulation 194 of the Revised Regulations of Ontario, 1990 is amended by striking out “74.13, 74.13.1, 74.20, 74.20.3, 74.23, 74.23.1, 74.26, 74.31” and substituting “74C”.
2. Clause 14.05 (1) (b) of the Regulation is amended by striking out “(Form 74.4, 74.4.1, 74.5, 74.5.1, 74.14, 74.15, 74.21, 74.24, 74.27 or 74.30)” and substituting “(Form 74A or 74J)”.
3. Subrule 74.02 (2) of the Regulation is amended by striking out “74.8” and substituting “74D”.
4. Subrule 74.03 (1) of the Regulation is amended by striking out “74.3” and substituting “74P”.
5. Rules 74.04 and 74.05 of the Regulation are revoked and the following substituted:
Certificate of Appointment of Estate Trustee
Application
74.04 (1) A person may seek a certificate of appointment of estate trustee by filing an application for a certificate of appointment of estate trustee (Form 74A) together with,
(a) an affidavit (Form 74B) attesting to service in accordance with subrules (2) to (6);
(b) proof of death;
(c) a draft certificate of appointment of estate trustee (Form 74C);
(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 74D) 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 74E), 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 74F);
(e) a renunciation (Form 74G), from the following persons:
(i) if there is a will, from every living person who is named in the will or codicil as estate trustee who has not joined in the application and is entitled to do so, or
(ii) if there is no will, from every person who is entitled in priority or is in equal right to be named as estate trustee and who has not joined in the application;
(f) if there is no will, or if there is a will but the applicant is not named as an estate trustee in the will or a codicil, a consent to the applicant’s appointment (Form 74H) by persons who are entitled to share in the distribution of the estate and who together have a majority interest in the value of the assets of the estate at the date of death;
(g) in the case of an application for a certificate of appointment of estate trustee with a will limited to the assets referred to in the will, a draft order in Form 74I granting the certificate of appointment;
(h) any security required by the Estates Act; and
(i) such additional or other material as the court directs.
Notification Requirements
(2) The applicant shall serve the following documents on every person entitled to share in the distribution of the estate, including charities and contingent beneficiaries:
1. The application for a certificate of appointment of estate trustee (Form 74A), including any attachments.
2. If there is a will,
i. in the case of a person entitled only to a specified item of property or a stated or determinable amount of money, a copy of the will and of any codicils, or of the applicable portion of the will or codicils, or
ii. in the case of any other beneficiary, a copy of the will and of any codicils.
Minors
(3) 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 (2) shall not be served on the person but shall instead be served on a parent or guardian and on the Children’s Lawyer.
Unborn or Unascertained Persons
(4) If there may be unborn or unascertained beneficiaries, the documents listed in subrule (2) shall also be served on the Children’s Lawyer.
Mentally Incapable Person
(5) 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 (2) shall also be served on,
(a) if there is a guardian with authority to act in the proceeding, 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, the attorney; or
(c) if there is neither a guardian nor an attorney with authority to act in the proceeding, the Public Guardian and Trustee.
Children’s Lawyer, Public Guardian and Trustee
(6) If under subrule (3), (4) or (5), the documents listed in subrule (2) are required to be served on the Children’s Lawyer or the Public Guardian and Trustee and there is a will, the applicant will serve, in addition to a copy of the will and of any codicils, a statement of the estimated value of the interest in the estate of the adult described in the application as lacking capacity or the minor, as the case may be, if that value is not disclosed in the application.
Method of Service
(7) Documents to be served on a person under this rule shall be served by,
(a) personal service;
(b) e-mail, to the last e-mail address for service provided by the person or, if no such e-mail address has been provided, to the person’s last known e-mail address; or
(c) mail or courier, to the person’s last known address.
6. (1) Subrule 74.05.1 (1) of the Regulation is amended by striking out the portion before clause (a) and substituting the following:
Certificate of Appointment of Foreign Estate Trustee’s Nominee as Estate Trustee without a Will
Application
(1) An application for a certificate of appointment of foreign estate trustee’s nominee as estate trustee without a will shall be in Form 74J and shall be accompanied by,
. . . . .
(2) Clause 74.05.1 (1) (a) of the Regulation is amended by striking out “74.20.2” and substituting “74K”.
(3) Subrule 74.05.1 (2) of the Regulation is revoked and the following substituted:
Certificate
(2) The certificate of appointment of foreign estate trustee’s nominee as estate trustee without a will shall be in Form 74C.
7. Rule 74.06 of the Regulation is revoked and the following substituted:
Certificate of Appointment of Succeeding Estate Trustee with a Will
Application
74.06 (1) An application for a certificate of appointment of estate trustee to succeed an estate trustee with a will or for a certificate of appointment of estate trustee to succeed an estate trustee with a will limited to the assets referred to in the will shall be in Form 74J, and shall be accompanied by,
(a) the original certificate of appointment or, if the original certificate has been lost, a copy of it certified by the court;
(b) a renunciation (Form 74G) from every living person who is named in the will or codicil as an estate trustee and who has not joined in the application and is entitled to do so;
(c) if the applicant is not named as an estate trustee in the will or codicil, a consent (Form 74H) to the application by persons who are entitled to share in the distribution of the remaining estate and who together have a majority interest in the value of the assets remaining in the estate at the date of the application;
(d) in the case of an application for a certificate of appointment of succeeding estate trustee with a will limited to the assets referred to in the will, a draft order (Form 74I) granting the certificate of appointment;
(e) any security required by the Estates Act; and
(f) such additional or other material as the court directs.
Certificate
(2) A certificate of appointment of succeeding estate trustee with a will or certificate of appointment of succeeding estate trustee with a will limited to the assets referred to in the will shall be in Form 74C.
8. (1) Subrule 74.07 (1) of the Regulation is amended by striking out the portion before clause (a) and substituting the following:
Certificate of Appointment of Succeeding Estate Trustee without a Will
(1) An application for a certificate of appointment of estate trustee to succeed an estate trustee without a will shall be in Form 74J, and shall be accompanied by,
. . . . .
(2) Clause 74.07 (1) (b) of the Regulation is amended by striking out “74.25” and substituting “74H”.
(3) Subrule 74.07 (2) of the Regulation is amended by striking out “74.26” at the end and substituting “74C”.
9. (1) Subrule 74.08 (1) of the Regulation is amended by striking out the portion before clause (a) and substituting the following:
Confirmation by Resealing of Appointment of Estate Trustee with or without a Will
(1) An application for confirmation by resealing of the appointment of an estate trustee with or without a will that was granted by a court of competent jurisdiction in the United Kingdom, in a province or territory of Canada or in any British possession shall be in Form 74J, and shall be accompanied by,
. . . . .
(2) Subrule 74.08 (2) of the Regulation is amended by striking out “74.28” at the end and substituting “74C”.
10. (1) Subrule 74.09 (1) of the Regulation is amended by striking out the portion before clause (a) and substituting the following:
Certificate of Ancillary Appointment of Estate Trustee with a Will
(1) An application for a certificate of ancillary appointment of estate trustee with a will where the applicant has been appointed by a court having jurisdiction outside Ontario, other than a jurisdiction referred to in rule 74.08, shall be in Form 74J, and shall be accompanied by,
. . . . .
(2) Subrule 74.09 (2) of the Regulation is revoked and the following substituted:
(2) A certificate of ancillary appointment of estate trustee with a will shall be in Form 74C.
11. (1) Subrule 74.10 (1) of the Regulation is amended by striking out the portion before clause (a) and substituting the following:
Certificate of Appointment of Estate Trustee during Litigation
(1) An application for a certificate of appointment of estate trustee during litigation shall be in Form 74J, and shall be accompanied by,
. . . . .
(2) Subrule 74.10 (2) of the Regulation is amended by striking out “74.31” at the end and substituting “74C”.
12. Subrule 74.11 (1) of the Regulation is amended by,
(a) striking out “74.32” and substituting “74L”; and
(b) striking out “74.33” and substituting “74M”.
13. Subrule 74.12 (1) of the Regulation is amended by striking out “74.34” and substituting “74N”.
14. (1) Subrule 74.14 (1) of the Regulation is amended by adding “(Form 74C)” at the end of the portion before clause (a).
(2) Subrule 74.14 (5) of the Regulation is amended by striking out “74.35” in the portion before clause (a) and substituting “74O”.
15. (1) Clause 74.15 (1) (a) of the Regulation is amended by striking out “(Form 74.36)”.
(2) Clause 74.15 (1) (b) of the Regulation is amended by striking out “(Form 74.37)”.
(3) Clause 74.15 (1) (c) of the Regulation is amended by striking out “(Form 74.38)”.
(4) Clause 74.15 (1) (d) of the Regulation is amended by striking out “(Form 74.39)”.
(5) Clause 74.15 (1) (f) of the Regulation is amended by striking out “(Form 74.40)”.
(6) Clause 74.15 (1) (g) of the Regulation is amended by striking out “(Form 74.41)”.
(7) Clause 74.15 (1) (h) of the Regulation is amended by striking out “(Form 74.42)”.
(8) Rule 74.15 of the Regulation is amended by adding the following subrule:
Form of Orders
(5) An order under subrule (1) shall be in Form 74I.
16. (1) Sub-subclause 74.1.03 (1) (d) (i) (A) of the Regulation is amended by striking out “74.8” and substituting “74D”.
(2) Sub-subclause 74.1.03 (1) (d) (i) (B) of the Regulation is amended by striking out “74.10” and substituting “74E”.
(3) Subclause 74.1.03 (1) (d) (ii) of the Regulation is amended by striking out “74.9” and substituting “74F”.
(4) Subrule 74.1.03 (3) of the Regulation is revoked and the following substituted:
Notification Requirements
(3) The applicant shall send or give the following documents to every person entitled to share in the distribution of the estate, including charities and contingent beneficiaries:
1. The application for a small estate certificate (Form 74.1A), including any attachments.
2. If there is a will,
i. in the case of a person entitled only to a specified item of property or a stated or determinable amount of money, a copy of the will and of any codicils, or of the applicable portion of the will or codicil, or
ii. in the case of any other beneficiary, a copy of the will and of any codicils.
(5) Rule 74.1.03 of the Regulation is amended by adding the following subrule:
Children’s Lawyer, Public Guardian and Trustee
(6.1) If under subrule (4), (5) or (6), the documents listed in subrule (3) are required to be sent or given to the Children’s Lawyer or the Public Guardian and Trustee and there is a will, the applicant will send or give, in addition to a copy of the will and of any codicils, a statement of the estimated value of the interest in the estate of the adult described in the application as lacking capacity or the minor, as the case may be, if that value is not disclosed in the application.
(6) Subrule 74.1.03 (7) of the Regulation is revoked and the following substituted:
Method of Sending Documents
(7) Documents to be sent to a person under this rule shall be sent to a person either by e-mail to the person’s last known e-mail address or by mail or courier to the person’s last known address.
17. Subrule 75.06 (4) of the Regulation is amended by striking out “or 75.9” at the end.
18. (1) The Table of Forms to the Regulation is amended by striking out the rows for Forms 74.3 to 74.42 and 75.9.
(2) The Table of Forms to the Regulation is amended by adding the following rows:
74A |
Application for a Certificate of Appointment of Estate Trustee |
September 1, 2021 |
74B |
Affidavit of Service of Application for a Certificate of Appointment of Estate Trustee |
September 1, 2021 |
74C |
Certificate of Appointment of Estate Trustee |
September 1, 2021 |
74D |
Affidavit of Execution of Will or Codicil |
September 1, 2021 |
74E |
Affidavit of Condition of Will or Codicil |
September 1, 2021 |
74F |
Affidavit Attesting to the Handwriting and Signature of a Holograph Will or Codicil |
September 1, 2021 |
74G |
Renunciation |
September 1, 2021 |
74H |
Consent |
September 1, 2021 |
74I |
Order in an Estates Proceeding |
September 1, 2021 |
74J |
Application for Certificate or Confirmation of Appointment |
September 1, 2021 |
74K |
Nomination of Applicant by Foreign Estate Trustee |
September 1, 2021 |
74L |
Bond — Insurance or Guarantee Company |
September 1, 2021 |
74M |
Bond — Personal Sureties |
September 1, 2021 |
74N |
Registrar’s Notice to Estate Trustee Named in a Will or Codicil Deposited with the Court |
September 1, 2021 |
74O |
Registrar’s Notice to Applicant in an Application for a Certificate of Appointment of Estate Trustee |
September 1, 2021 |
74P |
Request for Notice of Commencement of Proceeding |
September 1, 2021 |
(3) The rows for Forms 74.1A, 74.1B, 74.1C, 74.1E, 74.1F and 75.1 in the Table of Forms to the Regulation are amended by striking out the date in the column titled “Date of Form” and substituting “September 1, 2021”.
(4) The row for Form 75.8 in the Table of Forms to the Regulation is struck out and the following substituted:
75.8 |
Order Giving Directions |
September 1, 2021 |
Commencement
19. This Regulation comes into force on the later of the day section 2 to Schedule 9 to the Accelerating Access to Justice Act, 2021 comes into force and the day this Regulation is filed.
Made by:
Pris par :
Civil Rules Committee:
Le Comité des règles en matière civile :
Shannon Chace
Executive Legal Officer / Advocate Directrice
Secretary of the Civil Rules Committee / Secrétaire du Comité des règles en matière Civile
Court of Appeal for Ontario
Date made: October 7, 2021
Pris le : 7 octobre 2021
I approve this Regulation.
J’approuve le présent règlement.
Le procureur général,
Doug Downey
Attorney General
Date approved: October 13, 2021
Approuvé le : 13 octobre 2021