This article explicitly reviews the recent amendments to the Ontario Rule 74 probate process and the new standard for limitations periods from Grant Thornton LLP v. New Brunswick, 2021 SCC 31 [Thornton].
Amendments to Ontario's Rule 74 probate process
Coming into force on January 1st, 2022, the Ontario Superior Court of Justice ("ONSC") will amend its estate court rules and forms. These regulations aim to
- Streamline the Rule 74 probate process;
- Align the Rule 74 application forms with the Succession Law Reform Act amendments (s. 15(a), 16, 17, and 43.1) brought by the Accelerating Access to Justice Act; and,
- Make administrative amendments to 15 estate court forms.
These amendments are further expected to reduce costs, simplify the Rule 74 process, and allow court staff to process applications more quickly. It does so by:
- Introducing one set of requirements for applications with and without wills;
- reducing the number of forms by 35 forms (the content of 43 forms is now consolidated into 8 new forms);
- Creating new forms in a more straightforward format;
- Improving guiding language on forms; and,
- Numbering the forms alpha-numerically for easier identification.
This is a terrific step by the ONSC to make the probate process a little easier for everyone.
As a cloud-based estate administration platform, Estateably will have these updated form functionalities tested and ready by January 1st, 2022, so Ontario firms can hit the new year running.
Small estates - A trend towards more cost-efficient and simpler estate administration in Ontario
ONSC's move to amend the Rule 74 probate process follows a theme from the court's earlier change this year. The update, which came into effect April 1st, 2021, made it easier and less costly to manage small estates by raising the small estate limit to $150,000. This allows people to receive their inheritances faster and makes the Ontario probate process easier and more accessible for many Ontarians.
Before this change, the process for a $10,000 estate and $10,000,000 estate was the same, noted by Attorney General Doug Downey in his press release.
As a small estate, families no longer need to post bonds, and confirming a legal authority to manage an estate is faster. There are also new and simpler application forms, fewer requirements for supporting documents, and more guidance on filing a probate application for small estates.
Although estate administration taxes remain the same, these changes hopefully remove burdens from grieving families and allow some estates to settle sooner and at a lower cost.
Grant Thornton LLP v New Brunswick — a new standard for limitation periods
Statutes of limitations across Canada generally limit claims to two years upon discovering the claim (15 years in some instances, and without a limit in some others). Thornton was a summer decision by the Supreme Court of Canada ("SCC") that clarified when "discovering a claim" occurred.
The SCC found that the degree of knowledge required to discover a claim under the Limitation of Actions Act requires a "plausible inference of liability" — not perfect certainty. Further, a plausible inference of liability requires a degree of knowledge to discover a claim that's more than a mere suspicion or speculation.
Although the SCC's decision applies to the limitation periods of New Brunswick, it's possible that the common law will apply in the future to other provinces. Therefore, it's crucial for lawyers in all provinces to keep this decision in mind.
How this affects estate practitioners
The statute of limitations for all provinces affects estate litigations significantly. Like most forms of litigation, estate plaintiffs can no longer make a claim once this two-year limitation period is up.
Beneficiaries and counsel must understand that the clock may start ticking at the plausible inference of liability, instead of what their specific provinces relying on now or relied on before. Failure to adhere to this limitation may mean an inability to claim damages against other beneficiaries or estate administrators. Of course, these are all possibilities, as we do not understand how such precedence could affect individual provincial estate acts.
Overall, the simplification of the Ontario probate process is a welcome change. Both the Rule 74 amendments and the small estate changes remove burdens from many Ontarians already dealing with the difficulty of losing a loved one. It remains to be seen how the limitation period may also affect other provinces outside of New Brunswick.
If you're a law firm or professional services practice trying to further simplify your clients' probate and estate administration process, Estateably can help. Our tool allows you to enter information about a deceased, their assets and liabilities, the beneficiaries, and any financial transactions in one place. This enables your staff to automatically generate legal forms, precedents, and much more. Book a demo with one of our team members today.