PARTICULAR PROCEEDINGS RULES 72 - 75
RULE 72 PAYMENT INTO AND OUT OF COURT
DEFINITIONS
72.01 In rules 72.02 to 72.05,
"accountant" means the Accountant of the Ontario Court; ("comptable")
"registrar" means the registrar in the location where the proceeding was commenced ("greffier").
PAYMENT INTO COURT
General Procedure
72.02 (1) A person who seeks to pay money into court shall file with the accountant or, if the proceeding was commenced outside Toronto, with the accountant or registrar,
(a) a requisition for payment into court that refers to any statutory provision or rule that authorizes the payment into court; and
(b) a copy of any order, report, offer to settle or acceptance of offer under which the money is payable.
(1a) Notwithstanding subrule (1), in a proceeding under the Landlord and Tenant Act or the Repair and Storage Liens Act commenced outside Toronto, the material referred to in subrule (1) shall be filed with the registrar.
(2) On receiving the material referred to in subrule (1), the accountant shall provide the party with a direction to receive the money addressed to the bank into which the money is to be paid.
(4) Where the direction is obtained from a registrar, the registrar shall forthwith send to the accountant the material filed under subrule (1).
(5) Subrule (3) does not apply to payments into court in the proceedings referred to in subrule (1a).
(6) The party paying the money into court shall pay it into an account in the name of the accountant in a chartered bank, in accordance with the direction.
(7) On receiving the money, the bank shall give a receipt to the party paying the money in and shall forthwith send a copy of the receipt to the accountant.
(8) A party paying into court under an offer to settle or an acceptance of offer shall forthwith serve a notice of payment into court (Form 72A) on every interested party, but the notice shall not be filed.
Transfer to Accountant
(9) If money paid into court in a proceeding referred to in subrule (1a) is not paid out after one year, it shall be transferred to the accountant unless the court orders otherwise.
PAYMENT OUT OF COURT
Authority for Payment Out
72.03 (1) Money may be paid out of court only in accordance with an order or report, or on consent under subrule (4).
Payment Out under Order or Report
(2) A person who seeks payment of money out of court in accordance with an order or report shall file with the accountant or registrar,
(a) a requisition for payment out;
(b) a certified copy of the order or report, unless one has already been filed with the accountant or registrar; and
(c) an affidavit stating,
(i) in the case of a report, that the report has been confirmed and the manner of confirmation, or
(ii) in the case of an order, that the time prescribed for an appeal has expired and no appeal is pending,
unless such an affidavit has already been filed with the accountant or registrar, and the accountant or registrar shall then pay the money to the person to whom the order or report directs that it be paid.
(3) Where the Children's Lawyer or the Public Guardian and Trustee seeks payment out in accordance with an order or report, he or she may file one requisition dealing with more than one proceeding and need not file the affidavit referred to in clause (2)(c).
Payment Out on Consent
(4) A party who seeks payment out of court, on consent, of money paid in under an offer to settle or an acceptance of offer or as security for costs shall file with the accountant or registrar,
(a) a requisition for payment out;
(b) the consent of all parties or their solicitors; and
(c) an affidavit stating that all parties have consented to the payment and that neither the party who paid the money into court nor the party to whom it is to be paid is under disability,
and the accountant or registrar shall then pay the money out to the party in accordance with the consent.
Payment Out of Interest
(5) Money paid out of court under subrule (2) or (4) shall be paid out with accrued interest, if any, unless the order, report or consent provides otherwise.
Consent by Insurer on Behalf of Party
(6) Where the insurer of a party has paid money into court on behalf of the party and an affidavit setting out the relevant facts is filed with the accountant or registrar, the consent required by clause (4)(b) may be given by the insurer on behalf of the party and, where the party is entitled to payment out, the money may be paid out to the insurer.
Minor Attaining Age of Majority
(7) Money in court to which a party is entitled under an order or report when the party attains the age of majority may be paid out to the party on filing with the accountant or registrar,
(a) a requisition for payment out; and
(b) an affidavit proving the identity of the party and that the party has attained the age of majority.
Payment Directly to Solicitor
(8) Where money has been paid into court as security for costs or an order has been made for payment of costs out of money in court and the order does not provide for payment out directly to a solicitor, the money may be paid out to the solicitor for the party entitled, on filing with the accountant or registrar the material required by subrule (2) or (4) and the affidavit of the party stating that he or she consents to payment of the money directly to the solicitor rather than to the party.
Payment to Personal Representative
(9) Where money or securities in court are to be paid out or transferred to a person named in an order or report who has died, the money or securities may be paid or transferred to the deceased person's personal representative on proof to the satisfaction of the accountant of the person's death and of the personal representative's authority.
Party under Disability
(10) An order for payment out of court of money in court to the credit of a person under disability may be obtained on motion to a judge by or on notice to the Children's Lawyer, unless the Public Guardian and Trustee is the person's litigation guardian, in which case the motion shall be made by or on notice to the Public Guardian and Trustee.
(11) A motion under subrule (10), other than a motion made by the Children's Lawyer or the Public Guardian and Trustee, shall be supported by an affidavit in Form 72B.
(12) A motion under subrule (10) by the Children's Lawyer or the Public Guardian and Trustee may be made without notice unless the court orders otherwise.
(13) In an order under subrule (10), the judge may fix the costs of the moving party and direct that they be paid out of the money in court directly to the moving party's solicitor.
(14) Where an order is made under subrule (10) for support of a minor, the Children's Lawyer shall, on request of the moving party, obtain the cheque from the accountant and send it without charge to the moving party.
DISCHARGE OF A MORTGAGE
72.04 (1) A person entitled to the discharge of a mortgage held by the accountant may leave with the accountant or registrar the required discharge with a request that it be executed.
(2) Where the accountant is satisfied that the money secured by the mortgage has been paid in full and that the discharge is in proper form, the accountant shall execute the discharge.
(3) After executing the discharge, the accountant shall hand over all documents that relate to the mortgage in return for a receipt for the documents and shall assign any policy of insurance in respect of the mortgaged property to the person entitled to the discharge or as the person directs in writing.
STOP ORDER
72.05 (1) On motion without notice in a proceeding or, where there is no proceeding pending, on application without notice by a person who claims to be entitled to money or securities held or to be held in the future by the accountant for the benefit of another person, the court may make a stop order (Form 72C) directing that the money or securities shall not be dealt with except on notice to the moving party or applicant.
(2) On a motion or application for a stop order, the moving party or applicant shall, unless the court orders otherwise, undertake to abide by any order concerning damages that the court may make if it ultimately appears that the granting of the order has caused damage to any person for which the moving party or applicant ought to compensate the person.
(3) A person who has obtained an order under subrule (1) may make a motion on notice to all interested parties for an order for payment out.
RULE 73 RECIPROCAL ENFORCEMENT OF UNITED KINGDOM JUDGMENTS
DEFINITIONS
73.01 In rules 73.01 to 73.03,
"Act" means the Reciprocal Enforcement of Judgments (U.K.) Act;
"Convention" means the convention appearing as a schedule to the Act;
"judgment" means a judgment to which the Convention applies.
APPLICATION FOR REGISTRATION OF JUDGMENT
Notice of Application
73.02 (1) Notice of an application under the Act for registration of a judgment granted by a court of the United Kingdom shall be in Form 73A.
Supporting Material
(2) The application shall be supported by an affidavit that confirms the statements contained in the notice of application and sets out any additional facts necessary to establish that the applicant is entitled to register and enforce the judgment.
(3) The judgment and the original proof of service of the originating process of the United Kingdom court, or certified copies of them, shall accompany the affidavit as exhibits.
(4) The affidavit may contain statements of the deponent's information and belief, if the source of the information and the fact of the belief are specified in the affidavit. O. Reg. 366/87, s. 1, par. 21, part.
ENFORCEMENT OF JUDGMENT
73.03 A judgment registered under the Act may be enforced as if it had been granted by the court.
RULE 74 ESTATES_NON-CONTENTIOUS PROCEEDINGS
DEFINITIONS
74.01 In this Rule and in Rule 75,
"certificate of appointment of estate trustee" means letters probate, letters of administration or letters of administration with the will annexed; ("certificat de nomination à titre de fiduciaire de la succession")
"estate trustee" means an executor, administrator or administrator with the will annexed; ("fiduciaire de la succession")
"estate trustee during litigation" means an administrator appointed pending an action; ("fiduciaire de la succession pour la durée du litige")
"estate trustee with a will" means an executor or an administrator with the will annexed; ("fiduciaire de la succession testamentaire")
"estate trustee without a will" means an administrator; ("fiduciaire de la succession non testamentaire")
"objection to issuing of certificate of appointment means a caveat; ("opposition à la délivrance dun certificat de nomination")
"will" includes any testamentary instrument of which probate or administration may be granted. ("testament")
DEPOSIT OF WILLS AND CODICILS FOR SAFEKEEPING
74.02 (1) A registrar shall not receive and keep a will or codicil under section 2 of the Estates Act unless the deposit is made by,
(a) the testator;
(b) a person authorized by the testator in writing;
(c) a solicitor who held the will or codicil at the time of retirement from practice;
(d) the estate trustee of a solicitor who held the will or codicil at the time of the solicitor's death;
(e) the representative of a trust corporation that held the will or codicil when it ceased to do business in Ontario; or
(f) a person authorized by the court to deposit the will or codicil.
(2) An affidavit of execution of the will or codicil (Form 74.8) may be deposited at the same time as the will or codicil.
(3) The registrar shall cause every will or codicil that is deposited for safekeeping to be enclosed in an envelope that is securely sealed in the presence of the depositor, and shall cause to be endorsed on the envelope the date of the deposit, the name and address of the depositor and of the testator and estate trustee or trustees named in the will, the date of birth of the testator and the date of the will or codicil.
Notice to Estate Registrar
(4) When a will or codicil is deposited with the registrar, the registrar shall send a notice of the deposit (Form 74.1) to the Estate Registrar for Ontario within seven days after the deposit is made.
Access to Deposited Will or Codicil
(5) No person, except the testator in person or a guardian of the testator's property, or except by order of the court, shall remove, copy or inspect a will or codicil on deposit during the testator's lifetime.
(6) After the death of the testator, any person may copy or inspect a will or codicil of the testator on deposit, on filing a written request stating the testator's date of birth and a death certificate issued by the Registrar General or a funeral director.
Delivery of Will or Codicil to Estate Trustee
(7) After the death of the testator, the registrar shall, on the filing of a written request stating the testator's date of birth and of a death certificate issued by the Registrar General or a funeral director, deliver the will or codicil of the testator that is on deposit to the estate trustee named in the will, or to such other person as the court directs, and the registrar shall,
(a) retain a copy of the will and any codicil, certified to be a true copy by the registrar, and the receipt of the person to whom the will or codicil is delivered; and
(b) send a notice of the withdrawal (Form 74.2) to the Estate Registrar for Ontario.
Archivist of Ontario
(8) The registrar shall deposit with the Archivist of Ontario wills and codicils that have been held for safekeeping for 125 years or more.
REQUEST FOR NOTICE OF COMMENCEMENT OF PROCEEDING
74.03 (1) At any time before a certificate of appointment of an estate trustee has been issued, a person who appears to have a financial interest in the estate and who desires to be informed of the commencement of a proceeding in the estate may file with the registrar a request for notice (Form 74.3), and thereafter is entitled to receive notice of the commencement of any proceeding in the estate until a certificate of appointment of an estate trustee is issued, unless the court orders otherwise.
(2) Notice by the registrar under subrule (1) may be sent by regular lettermail to the address shown in the request for notice.
(3) A request for notice expires three years after it is filed but a further request may be filed at any time before a certificate of appointment of an estate trustee for the estate is issued.
CERTIFICATE OF APPOINTMENT OF ESTATE TRUSTEE WITH A WILL
74.04 (1) An application for a certificate of appointment of estate trustee with a will (Form 74.4 or 74.5) shall be accompanied by,
(a) the original of the will and of every codicil;
(b) an affidavit (Form 74.6) attesting that notice of the application (Form 74.7) has been served in accordance with subrules (2) to (7);
(c) an affidavit of execution (Form 74.8) of the will and of every codicil, or if neither of the witnesses to the will or the codicil can be found, or both have died, such other evidence of due execution as the court may require;
(d) if the will or a codicil is in holograph form, an affidavit (Form 74.9) attesting that the handwriting and signature in the will or codicil are those of the deceased;
(e) if the will or a codicil is not in holograph form but 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);
(f) a renunciation (Form 74.11) 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;
(g) if the applicant is not named as an estate trustee in the will or codicil, a consent to the applicant's appointment (Form 74.12) 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;
(h) the security required by the Estates Act; and
(i) such additional or other material as the court directs.
Notice to Interested Persons
(2) Notice of the application shall be served on all persons entitled to share in the distribution of the estate, including charities and contingent beneficiaries; however, notice need not be served on the applicant.
(3) [Revoked O. Reg. 24/00, s. 12.]
Notice - Minor
(4) If a person who is entitled to share in the distribution of the estate is
less than 18 years of age, notice of the application shall not be served on the person, despite subrule (2), but shall be served on a parent or guardian and on the Children's Lawyer.
Notice - Unborn or Unascertained Persons
(5) If there may be unborn or unascertained beneficiaries, notice of the application shall be served on the Children's Lawyer.
Notice - 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 4.ct, 1992 in respect of an issue in the proceeding, notice of the application
(a) if there is a guardian with authority to act in the proceeding, on 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, on the attorney;
(c) if there is neither a guardian nor an attorney with authority to act in the proceeding, on the Public Guardian and Trustee.
Regular Lettermail
(7) Notice under this rule shall be served on all persons, including charities, the Children's Lawyer and the Public Guardian and Trustee, by regular lettermail sent to the person's last known address.
Certificate
(8) The certificate of appointment of estate trustee with a will shall be in Form 74.13.
(9) The certificate of appointment of estate trustee with a will limited to the assets referred to in the will shall be in Form 74.13.1.
CERTIFICATE OF APPOINTMENT OF ESTATE TRUSTEE WITHOUT A WILL
Material to Accompany Application
74.05 (1) An application for a certificate of appointment of estate trustee without a will (Form 74.14 or 74.15) shall be accompanied by,
(a) an affidavit (Form 74.16) attesting that notice of the application (Form 74.17) has been served in accordance with subrules (2) to (5);
(b) a renunciation (Form 74.18) from every person who is entitled in priority to be named estate trustee and who has not joined in the application;
(c) a consent to the applicant's appointment (Form 74.19) 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;
(d) the security required by the Estates Act; and
(e) such additional or other material as the court directs.
Notice to Interested Persons
(2) Notice of the application shall be served on all persons entitled to share in the distribution of the estate; however, notice need not be served on the applicant.
Notice-Minor
(3) If a person who is entitled to share in the distribution of the estate is less than 18 years of age, notice of application shall not be served on the person, despite subrule (2), but shall be served on a parent or guardian and on the Children's Lawyer.
Notice-Mentally Incapable Person
(4) 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, notice of the application shall also be served,
(a) if there is a guardian with authority to act in the proceeding, on 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, on the attorney;
(c) if there neither a guardian nor an attorney with authority to act in the proceeding, on the Public Guardian and Trustee.
Regular Lettermail
(5) Notice under this rule shall be served on all persons, including the Children's Lawyer and the Public Guardian and Trustee, by regular lettermail sent to the person's last known address.
Certificate
(6) The certificate of appointment of estate trustee without a will shall in the Form 74.20.
CERTIFICATE OF APPOINTMENT OF FOREIGN ESTATE TRUSTEE'S NOMINEE AS ESTATE TRUSTEE WITHOUT A WILL
Material to Accompany Application
74.05.1 (1) An application for a certificate of appointment of a foreign estate trustee's nominee as estate trustee without a will (Form 74.20.1) shall be accompanied by,
(a) a nomination (Form 74.20.2) of the applicant by the estate trustee appointed in the jurisdiction where the deceased was domiciled at the date of death;
(b) a copy of the document appointing the foreign estate trustee, certified under the seal of the court that granted it;
(c) a certificate under the seal of the court that granted the foreign document, issued within a reasonable amount of time before the date of the application and stating that the foreign document remains effective as of the date of the certificate;
(d) the security required by the Estates Act; and
(e) such additional or other material as the court directs.
Certificate
(2)The certificate of appointment of a foreign estate trustee's nominee as estate trustee without a will shall be in Form 74.20.3.
CERTIFICATE OF APPOINTMENT OF SUCCEEDING ESTATE TRUSTEE WITH A WILL
74.06 (1) An application for a certificate of appointment of estate trustee to succeed an estate trustee with a will (Form 74.21) 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 74.11) 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 74.22) 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) the security required by the Estates Act; and
(e) such additional or other material as the court directs.
(2) The certificate of appointment of a succeeding estate trustee with a will shall be in Form 74.23.
CERTIFICATE OF APPOINTMENT OF SUCCEEDING ESTATE TRUSTEE WITHOUT A WILL
74.07 (1) An application for a certificate of appointment of estate trustee to succeed an estate trustee without a will (Form 74.24) 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 consent (Form 74.25) 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;
(c) the security required by the Estates Act; and
(d) such additional or other material as the court directs.
(2) The certificate of appointment of a succeeding estate trustee without a will shall be in Form 74.26.
CONFIRMATION BY RESEALING OF APPOINTMENT OF ESTATE TRUSTEE WITH OR WITHOUT A WILL
74.08 (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 (Form 74.27) shall be accompanied by,
(a) two certified copies of the document under the seal of the court that granted it, or the original document and one certified copy under the seal of that court that granted it;
(b) the security required by the Estates Act; and
(c) such additional or other material as the court directs.
(2) A confirmation by resealing of the appointment of an estate trustee with or without a will shall be in Form 74.28.
CERTIFICATE OF ANCILLARY APPOINTMENT OF ESTATE TRUSTEE WITH A WILL
74.09 (1) An application for a certificate of ancillary appointment of an 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, (Form 74.27) shall be accompanied by,
(a) two certified copies of the document under the seal of the court that granted it;
(b) the security required by the Estates Act; and
(c) such additional or other material as the court directs.
(2) A certificate of ancillary appointment of an estate trustee with a will shall be in Form 74.29.
CERTIFICATE OF APPOINTMENT OF ESTATE TRUSTEE DURING LITIGATION
74.10 (1) An application for a certificate of appointment of an estate trustee during litigation (Form 74.30) shall be accompanied by,
(a) a copy of the order appointing the applicant as estate trustee during litigation;
(b) the security required by the Estates Act; and
(c) such additional or other material as the court directs.
(2) A certificate of appointment of an estate trustee during litigation shall be in Form 74.31.
BONDS
74.11 (1) Unless the court orders otherwise,
(a) the bond required by section 35 of the Estates Act shall be the bond of an insurer licensed under the Insurance Act to write surety and fidelity insurance in Ontario (Form 74.33);
(b) a registrar of the court or a solicitor shall not be a personal surety;
(c) a personal surety must be a resident of Ontario who is not a minor;
(d) one personal surety is sufficient where the value of the assets of the estate does not exceed $100,000;
(e) the security required for a succeeding estate trustee shall be based on the value of the assets of the estate remaining to be administered at the time the application for a certificate of appointment as succeeding estate trustee is made; and
(f) the security required for confirmation by resealing of the appointment of an estate trustee, or for an ancillary appointment of an estate trustee, shall be based on the value of the assets of the estate over which the estate trustee seeks jurisdiction in Ontario.
(2) Any person, including a creditor, who has a contingent or vested interest in an estate may at any time, on notice to the estate trustee or applicant for appointment, move for an order to have a bond filed or the amount of an existing bond increased or reduced.
GENERAL PROCEDURE ON APPLICATIONS FOR CERTIFICATES OF APPOINTMENT OF ESTATE TRUSTEES
Material Required from Estate Registrar
74.12 (1) A certificate of appointment of estate trustee shall not be issued until the court has received from the Estate Registrar,
concise argument stating the facts and law(a) the certificate required by section 17 of the Estates Act that no other application has been filed in respect of the estate;
(b) a certificate that there is no notice of objection under rule 75.03 in effect;
(c) on an application where there is a will, a certificate that no will or codicil of a later date than that for which the certificate of appointment is sought has been deposited in the Superior Court of Justice;
(d) on an application where there is no will, a certificate that no will or codicil has been deposited in the Superior Court of Justice.
Where Certificate Shows Deposited Will or Codicil
(2) Where the application is for a certificate of appointment of an estate trustee with a will and the certificate of the Estate Registrar shows that a later will or codicil has been deposited, the registrar shall send to the applicant a copy of the certificate of the Estate Registrar by regular lettermail and shall send a notice (Form 74.34) to the estate trustee named in the deposited will or codicil by regular lettermail at the last address on record with the court.
(3) Where the application is for a certificate of appointment of an estate trustee without a will and the certificate of the Estate Registrar shows that a will or codicil has been deposited, the registrar shall send the applicant a copy of the certificate by regular lettermail and shall send a notice (Form 74.35) to the estate trustee named in the deposited will or codicil by regular lettermail at the last address on record with the court.
Establishing Date of Execution
(4) If a will is not dated or is dated imperfectly, the date of execution may be established by the evidence of an attesting witness or, where the evidence as to the date of execution cannot be obtained, evidence that the execution took place between two specific dates or that a search has been made and no will that could be of a later date has been found.
Registrar's Notes
(5) If a beneficiary or spouse of a beneficiary under a will or codicil has attested the will or codicil or has signed the will or codicil for the testator, and the provision for the beneficiary appears to the registrar to be void by reason of section 12 of the Succession Law Reform Act, the registrar shall note the fact on the will or codicil and the note shall be reproduced on the copy attached to the certificate of appointment.
(6) Where, a devise or bequest of a beneficial interest in property to a former spouse of the testator, or an appointment of a former spouse as estate trustee, or the conferring of a general or special power of appointment of a former spouse, is revoked by reason of section 17 of the Succession Law Reform Act, the registrar shall note the fact on the will or codicil and the note shall be reproduced on the copy of the will that is attached to the certificate of appointment.
FEES
Fees Payable at Time of Application
74.13 (1) The deposit equal to tax referred to in the Estate Administration Tax Act, 1998 shall be paid at the time an application for a certificate of appointment of an estate trustee is made.
Exception
(2) The court may issue the certificate of appointment where the
applicant,
(a) files with the court an affidavit as to the estimated value of the estate at the time of the application and pays the deposit equal to tax calculated on the estimated value; and
(b) provides an undertaking to the court that the applicant will, within six months after giving the undertaking, file a sworn statement of the total value of the estate and pay the additional tax payable if the actual value is higher than the estimated value.
(3) The court may issue the certificate of appointment without the payment of a deposit equal to tax if the applicant has obtained an order under subsection 4(1) of the Estate Administration Tax Act, 1998.
(4) Where an undertaking given under subrule (2) is not fulfilled or the terms of an order under subsection 4(1) of the Estate Administration Tax Act, 1998 are not complied with, the court may, on the request of the registrar, make an order for compliance.
Exception
(2) The court may issue the certificate of appointment where the applicant,
(a) files with the court an affidavit as to the estimated value of the estate at the time of the application and pays the prescribed fees calculated on the estimated value; and
(b) provides an undertaking to the court to file a sworn statement of the total value of the estate and to pay the balance of the fees owing within six months of the filing of the undertaking.
(3) Where an undertaking given under subrule (2) is not fulfilled, the court may, on the request of the registrar, make an order for compliance.
ISSUING CERTIFICATE OF APPOINTMENT OF ESTATE TRUSTEE
74.14 (1) Where an application for a certificate of appointment as an estate trustee and the material required to accompany the application are complete, the registrar may issue the certificate.
(2) Where, in the opinion of the registrar, the application and accompanying material are not complete or contain information on which the registrar has a doubt, the application shall be referred to a judge for determination.
ORDERS FOR ASSISTANCE
Kinds of Orders
74.15 (1) In addition to a motion under section 9 of the Estates Act, any person who appears to have a financial interest in an estate may move,
Order to Accept or Refuse Appointment
(a) for an order (Form 74.36) requiring any person to accept or refuse an appointment as an estate trustee with a will;
(b) for an order (Form 74.37) requiring any person to accept or refuse an appointment as an estate trustee without a will;
Order to Consent or Object to Proposed Appointment
(c) for an order (Form 74.38) requiring any person to consent or object to a proposed appointment of an estate trustee with or without a will;
Order to File Statement of Assets of the Estate
(d) for an order (Form 74.39) requiring an estate trustee to file with the court a statement of the nature and value, at the date of death, of each of the assets of the estate to be administered by the estate trustee;
Order for Further Particulars
(e) after receiving the statement described in clause (d), for an order for further particulars by supplementary affidavit or otherwise as the court directs;
Order to Beneficiary Witness
(f) for an order (Form 74.40) requiring a beneficiary or the spouse of a beneficiary who witnessed the will or codicil, or who signed the will or codicil for the testator, to satisfy the court that the beneficiary or spouse did not exercise improper or undue influence on the testator;
Order to Former Spouse
(g) for an order (Form 74.41) requiring a former spouse of the deceased to take part in a determination under subsection 17(2) of the Succession Law Reform Act of the validity of the appointment of the former spouse as estate trustee, a devise or bequest of a beneficial interest to the former spouse or the conferring of a general or special power of appointment on him or her;
Order to Pass Accounts
(h) for an order (Form 74.42) requiring an estate trustee to pass accounts; and
Order for Other Matters
(i) for an order providing for any other matter that the court directs.
Notice of Motion
(2) A motion under subrule (1) may be made without notice, except a motion under clause (1) (e), which requires 10 days notice to the estate trustee
Service
(3) An order referred to in subrule (1) and an order for production under section 9 of the Estates Act shall be served by personal service, by an alternative to personal service or as the court directs.
Examination
(4) The court may require any person to be examined under oath for the purpose of deciding a motion under subrule (1).
PASSING OF ESTATE ACCOUNTS
74.16 Rules 74.17 and 74.18 apply to accounts of estate trustees and, with necessary modifications, to accounts of trustees other than estate trustees, persons acting under a power of attorney, guardians of the property of mentally incapable persons, guardians of the property of a minor and persons having similar duties who are directed by the court to prepare accounts relating to their management of assets or money.
FORM OF ACCOUNTS
74.17 (1) Estate trustees shall keep accurate records of the assets and transactions in the estate and accounts filed with the court shall include,
(a) on a first passing of accounts, a statement of the assets at the date of death, cross-referenced to entries in the accounts that show the disposition or partial disposition of the assets,
(b) on any subsequent passing of accounts, a statement of the assets on the date the accounts for the period were opened, cross-referenced to entries in the accounts that show the disposition or partial disposition of the assets, and a statement of the investment, if any, on the date the accounts for the period were opened;
(c) an account of all money received, but excluding investment transactions recorded under clause (e);
(d) an account of all money disbursed, including payments for trustee's compensation and payments made under a court order, but excluding investment transactions recorded under clause (e);
(e) where the estate trustee has made investments, an account setting out,
(i) all money paid out to purchase investments,
(ii) all money received by way of repayments or realization on the investments in whole or in part, and
(iii) the balance of all the investments in the estate at the closing date of the accounts;
(f) a statement of all the assets in the estate that are unrealized at the closing date of the accounts;
(g) a statement of all money and investments in the estate at the closing date of the accounts;
(h) a statement of all the liabilities of the estate, contingent or otherwise, at the closing date of the accounts;
(i) a statement of the compensation claimed by the estate trustee and, where the statement of compensation includes a management fee based on the value of the assets of the estate, a statement setting out the method of determining the value of the assets; and
(j) such other statements and information as the court requires.
(2) The accounts required by clauses (1) (c), (d) and (e) shall show the balance forward for each account.
(3) Where a will or trust deals separately with capital and income, the accounts shall be divided to show separately receipts and disbursements in respect of capital and income.
APPLICATION TO PASS ACCOUNTS
Material to be Filed
74.18 (1) On the application of an estate trustee to pass accounts, the estate trustee shall file,
(a) the estate accounts for the relevant period verified by affidavit of the estate trustee (Form 74.43);
(b) a copy of the certificate of appointment of the applicant as estate trustee;
(c) a copy of the latest judgment, if any, of the court relating to the passing of accounts.
Notice of Application
(2) On receiving the material referred to in subrule (1), the court shall issue a notice of the application to pass accounts (Form 74,44).
Service
(3) The applicant shall serve the notice of application and a copy of a draft of the judgment sought on each person who has a contingent or vested interest in the estate by regular lettermail.
(3.1) Where the Public Guardian and Trustee or the Children's Lawyer represents a person who has a contingent or vested interest in the estate, the Public Guardian and Trustee or the Children's Lawyer shall be served with the documents referred to in subrules (1) and (3).
(4) Where the person is served in Ontario, the documents shall be served at least 45 days before the hearing date of the application.
(5) Where the person is served outside Ontario, the documents shall be served at least 60 days before the hearing date of the application.
Appointment of Person to Represent Interest
(6) Where a person who has a financial interest in an estate is under a disability or is unknown and the Public Guardian and Trustee or Children's Lawyer is not authorized to represent the interest under any Act and there is no guardian or committee or other person to represent the interest on the passing of the accounts, the court may appoint a person for the purpose.
Notice of Objection to Accounts
(7) Subject to subrule (8), a person who is served with documents under subrule (4) or (5) and who wishes to object to the accounts shall do so by serving on the estate trustee and filing with proof of service a notice of objection to accounts (Form 74.45), at least 20 days before the hearing date of the application.
(8) Where a person who has a contingent or vested interest in the estate is represented by the Public Guardian and Trustee or Children's Lawyer, the Public Guardian and Trustee or Children's Lawyer, as the case may be, shall serve on the estate trustee and file with proof of service, at least 20 days before the hearing date of the application, a notice of objection to accounts (Form 74.45) or a notice of no objection to accounts (Form 74.46) or a notice of non-participation in passing of accounts (Form 74.46.1).
Judgment on Passing of Accounts Granted Without Hearing
(9) The court may grant a judgment on passing accounts without a hearing if the estate trustee files with the court, at least 10 days before the hearing date of the application,
(i) an affidavit of service of the documents referred to in subrules (4) and (5),
(ii) the notices of no objection to accounts or notices of non-participation in passing of accounts of the Children's Lawyer and Public Guardian and Trustee, if served,
(iii) an affidavit (Form 74.47) of the applicant or applicant's solicitor stating that a copy of the accounts was provided to each person who was served with the notice of application and requested a copy, that the time for filing notices of objection to accounts has expired and that no notice of objection to accounts was received from any person served, or that, if a notice of objection was received, it was withdrawn as evidenced by a notice of withdrawal of objection (Form 74.48) attached to the affidavit,
(iv) requests (Form 74.49) or 74.49.1), if any, for costs of the persons served, and
(v) the certificate of a solicitor stating that all documents required by subclauses (i) to (iv) are included in the record; and
(b) a draft of the judgment sought, in duplicate, and
(c) if the children's Lawyer or the Public Guardian and Trustee was served with the notice of application and did not serve a notice of non-participation in of accounts, a copy of the draft judgment approved by the children's Lawyer or the Public Guardian and Trustee, as the case may be.
(10) Where the court grants judgment without a hearing, the costs awarded shall be assessed in accordance with Tariff C.
Request for increased Costs
(11) Where the estate trustee or a person with a financial interest in the estate seeks costs greater than the amount allowed in Tariff C, the estate trustee or other person shall serve a request for increased costs (Form 74.49.2 or 74.49.3) on every other party to the application and file it, with proof of service.
(11.1) Unless the court orders otherwise, a request for increased costs may be served and filed only during the following period:
1. in the case of an estate trustee, the period beginning 10 days after service of the notice of application is complete and ending 10 days before the hearing date specified in the notice.
2. In the case of a person with a financial interest in the estate, the period beginning 10 days after the notice of application is served on the person and ending 10 days before the hearing date specified in the notice.
Hearing
(11.2) The hearing shall proceed on the date specified in the notice of application if,
(a)a request for increased costs has been filed; or
(b)the court declines to grant judgment without a hearing.
(12) No objection shall be raised at the hearing that was not raised in a notice of objection to accounts, unless the court orders otherwise.
(13) At the hearing the court may assess, or refer to an assessment officer, any bill of costs, account or charge of solicitors employed by the estate trustee.
Form of Judgment
(14) The judgment on a passing of accounts shall be in Form 74.50 or 74.51.
RULE 75 ESTATES_CONTENTIOUS PROCEEDINGS
FORMAL PROOF OF TESTAMENTARY INSTRUMENT
75.01 An estate trustee or any person having a financial interest in an estate may make an application under rule 75.06 to have a testamentary instrument that is being put forward as the last will of the deceased proved in such manner as the court directs.
PROOF OF LOST OR DESTROYED WILL
75.02 The validity and contents of a will that has been lost or destroyed may be proved on an application,
(a) by affidavit evidence without appearance, where all persons who hive a financial interest in the estate consent to the proof; or
(b) in the manner provided by the court in an order giving directions made under rule 75.06.
OBJECTION TO ISSUING CERTIFICATE OF APPOINTMENT
Notice of Objection
75.03 (1) At any time before a certificate of appointment of estate trustee has been issued, any person who appears to have a financial interest in the estate may give notice of an objection by filing with the registrar or the Estate Registrar for Ontario a notice of objection (Form 75.1), signed by the person or the person's solicitor, stating the nature of the interest and of the objection.
Expiry, Withdrawal and Removal of Notice of Objection
(2) A notice of objection expires three years after it is filed and may be withdrawn by the person who filed it at any time before a hearing for directions under rule 75.06 in an application for the certificate or may be removed by order of the court.
Notice to Applicant
(3) Where an application for a certificate of appointment of estate trustee has been made and a notice of objection is filed, the registrar shall send notice of the filing (Form 75.2) by regular lettermail to the applicant or the applicant's solicitor at the mailing address shown in the application.
Notice to Objector
(4) An applicant who receives a notice under subrule (3) shall serve on the objector a notice to objector (Form 75.3) and file a copy of the notice and proof of service with the court.
(5) Where the objector does not serve and file a notice of appearance (Form 75.4) within 20 days after service of the notice to objector, the application shall proceed as if the notice of objection had not been filed.
Motion for Directions
(6) If the applicant does not move for directions within 30 days after service of the notice of appearance, the objector may move for directions.
REVOCATION OF CERTIFICATE OF APPOINTMENT
75.04 On the application of any person any person who appears to have a financial interest in an estate, the court may revoke the certificate of appointment of the estate trustee where the court is satisfied that,
(a) the certificate was issued in error or as a result of a fraud on the court;
(b) the appointment is no longer effective; or
(c) the certificate should be revoked for any other reason.
RETURN OF CERTIFICATE
Motion for Return of Certificate
75.05 (1) The court may, on motion, order that a certificate of appointment be returned to the court where,
(a) the moving party seeks a determination of the validity of the testamentary instrument for which the certificate was issued or of the entitlement of the estate trustee to the certificate; or
(b) an application has been made under rule 75.04.
Notice
(2) The motion may be made without notice unless the court orders otherwise.
Effect of Order
(3) On service of the order to return the certificate of appointment, the estate trustee shall forthwith deposit the original certificate with the registrar, and the appointment has no further effect and shall not be acted on until,
(a) the issues referred to in clause (1) (a) or the application referred to in Clause (1) (b), as the case may be, have been determined by the court; or
(b) the release of the certificate is ordered under subrule (6).
Motion for Direction
(4) A party who obtains an order under clause (1) (a) shall move for directions under rule 75.06 within 30 days after the making of the order.
(5) The estate trustee may at any time move for directions under rule 75.06 for determination by the court of the matters referred to in clause (3)(a).
Release of Certificate
(6) If a motion for directions referred to in subrule (4) or (5) is not made, the court may, on motion of the estate trustee without notice, order the release to the estate trustee of the certificate of appointment.
APPLICATION OR MOTION FOR DIRECTIONS
75.06 (1) Any person who appear to have a financial interest in an estate may apply for directions, or move for directions in another proceeding under this rule, as to the procedure for bringing any matter before the court.
Service
(2) An application for directions (Form 75.5) or motion for directions (Form 75.6) shall be served on all persons appearing to have a financial interest in the estate, or as the court directs, at least 10 days before the hearing of the application or motion.
Order
(3) On an application or motion for directions, the court may direct,
(a) the issues to be decided,
(b) who are parties, who is plaintiff and defendant and who is submitting rights to the court;
(c) who shall be served with the order for directions, and the method and times of service;
(d) procedures for bringing the matter before the court in a summary fashion, where appropriate;
(e) that the plaintiff file and serve a statement of claim (Form 75.7);
(f) that an estate trustee be appointed during litigation, and file such security as the court directs;
(f.1) that a mediation session be conducted under Rule 75.1
(g) such other procedures as are just.
(4) An order giving directions shall be in Form 75.8 or 75.9.
PROCEDURE WHERE STATEMENT OF CLAIM SERVED
Defendant., Statement of Defence, Statement of Defence and Counterclaim or Submission of Rights to Court
75.07 (1) Where a statement of claim is delivered as directed under subrule 75.06 (3), each defendant served may serve on each party and file with proof of service,
(a) a statement of defence or a statement of defence and counterclaim; or
(b) a statement of submission of rights to the court (Form 75.10).
Plaintiff. Reply or Reply and Defence to Counterclaim
(2) A plaintiff may deliver a reply or a reply and defence to counterclaim.
Effect of Submitting Rights to Court
(3) [Revoked. O. Reg. 484/94, s12. am O. Reg 740/94,s.5 ]
Effect of Failure to File Pleadings
(4) A person who is served with a statement of claim and who does not file a statement of defence, a statement of defence and counterclaim or a statement of submission of rights to the court is not a party to tie proceeding and his or her consent to any settlement, agreement or consent judgment is not required.
SUBMISSION OF RIGHTS TO COURT
75.07.1 Where a person files a statement of submission of rights to the court in response to service of a statement of claim or on a motion or application for directions,
(a) the person is not a party to the proceeding and is entitled only to service by the plaintiff of written notice of the time and place of the trial and a copy of the judgment disposing of the matter;
(b) the person is not entitled to costs in the proceeding and is not liable for costs, except indirectly to the extent that costs are ordered to be paid out of the estate; and
(c) a judgment on consent following settlement shall not be given without,
(i) the written consent of the person, or
(ii) an affidavit of a solicitor of record in the proceeding attesting that a notice of settlement (Form 75.11), appended as an exhibit to the affidavit, has been personally served on the person and no rejection of settlement (Form 75.12) has been filed with the court within 10 days after service of the notice.
CLAIMS AGAINST AN ESTATE
Notice of Contestation of Claim
75.08 (1) A notice of contestation of a claim under section 44 or 45 of the Estates Act shall be in Form 75.13.
Claims
(2) A claim. made against an estate under section 44 or 45 of the Estates Act shall be in Form 75.14.
Service
(3) The claimant shall serve the claim on the estate trustee and file the claim and the notice of contestation, with proof of service, within 30 days after service of the notice of contestation.
Date of Trial
(4) When the claim and notice of contestation are filed, the registrar shall fix a date for trial.
Manner of Trial
(5) The trial shall proceed in a summary manner unless the judge considers it appropriate to give directions as to the issues, parties and pleadings.
SOLICITOR OF RECORD
75.09(1) The solicitor who takes any of the following steps on party's behalf is the party's solicitor of record:
1. Filing a notice of objection under rule 75.03.
2. Moving for return of a certificate under rule 75.05.
3. Moving for directions under rule 75.06.
(2) Rule 15.02 applies, with necessary modifications, as if the notice or motion were an originating process.