The first place to start as a potential beneficiary of an estate is to check probate records. Once a Will is probated in Ontario, it becomes a public document, meaning it can be searched at the Superior Court of Ontario. If your relative had a Will, it may or may not have been probated. Probating a Will means submitting an Application for a Certificate of Appointment of Estate Trustee with a Will to the court and receiving the certificate back. The Certificate of Appointment, or Probate for short, certifies that the person holding him or herself out to be the executor of the Will is indeed, in the eyes of the court, the executor. And that is because the probate process involves a number of discrete steps to authenticate the validity of a Will.
Among others, the probate process allows those who have an interest in the estate to make objections to the probate application – a bit like in wedding scenes in the movies, when the minister asks those in attendance if there are any objections to the marriage. Once the process is complete, the certificate is issued, or probate “granted”. Searching the courthouse in the area where a relative lived is a good first step.
Since Wills might not be probated, another place to look is Willcheck.ca or the Canada Will Registry. However, in Ontario these are optional registries, meaning that suspected Wills may or may not be registered there. In Ontario, the common law tradition arises from a decentralized form of law, originating in the travelling courts of medieval England. The notion that judgments bearing on the freedoms of citizens should be sensitive to local norms and, in the case of juries, involve judgment by one’s peers, is an expression of the principle of subsidiarity, in other words, the principle that public authority begins with local government, and that the powers that local governments are unable to exercise are to be executed by higher orders of government.
In this spirit, the common law also affords a very private dimension, for example, in the area of private contract law, and Wills, where the documents that people sign effectively become the laws that privately govern them. In the common law tradition, Wills can therefore be seen as a private family matter, decentralized and taking root at the most local form of government – the family – and are not subject to public scrutiny until after death, when the checks and balances of the probate process is necessary to authenticate a document as the last Will and testament of the deceased, who can no longer speak for him or herself.
Finally, if you appear to have a financial interest in the estate in question, for example, you are a close relative of the deceased, you may wish to consider retaining the services of a lawyer to make an Application for Directions under Rule 75.06 of the Ontario Rules of Civil Procedure. Rule 75.06 provides that any person who appears to have a financial interest in an estate may apply for directions from the court. In this case, you would seek directions from the court as to how to obtain disclosure from the executor, whether by way of a sworn affidavit as to the existence or non-existence of a Will, an accounting of the estate, the disclosure of the Will, or all of the above.
This blog post was written by Dylan McGuinty, Jr., a member of the Wills and Estates and Estate Litigation teams. He can be reached at 613-369-0379 or at dylan.mcguinty@mannlawyers.com.
