Below are guidelines to address common errors in applications for a certificate of
appointment of estate trustee with, or without, a will. You may wish to keep these in
mind when completing your application.
All Applications
- Section 7 of the Estates Act provides that the application for a certificate of
appointment of estate trustee with or without a will must be filed with the Superior
Court of Justice in the county or district in which the deceased resided at the time
of death. If the deceased did not reside in Ontario at the time of death, the
application must be filed at the Superior Court of Justice in the county or district
where the deceased had property at the time of death.
Read the Act on the Ontario government’s E-laws website at: http://www.ontario.ca/laws/statute/90e21.
- Rule 74 of the Rules of Civil Procedure sets out the estates forms that must be
used. Rule 4 of the Rules of Civil Procedure sets out the format that must be
used. View the Rules of Civil Procedure at: http://www.ontario.ca/laws/regulation/900194. The forms are
available on the Ontario Court Forms website at: http://ontariocourtforms.on.ca/. There is a link on that website to properly formatted estates forms and are ready for you to fill in your information.
- In the space near the top of the application form where it says: “This application
is filed by…” fill in your name if you are representing yourself. If your lawyer is
representing you, your lawyer’s name is filled in.
- Make sure that you use the same names for people in all forms and make sure
they match the names set out in any will. This includes the deceased, estate
trustee(s) and beneficiaries and their respective “also known as names” (other
names by which they are known). For example, if the will names “Megan Hart”,
but her married name is “Megan Frost”, all documents would indicate “Megan
Frost referred to in the will as Megan Hart”.
- All of the following information must be completed on the court forms, and must
be consistent with the different forms filed:
- date of the will;
- date of death;
- occupation of the deceased (prior to retirement);
- occupation of the estate trustee(s), and addresses.
- The correct amount of estate administration tax must be paid. An estates tax calculator is available at www.attorneygeneral.jus.gov.on.ca/english/estates/calculate.php
- All changes to the application and any affidavit must be initialled by the deponent
and the same commissioner for taking affidavits.
- In some situations a bond must be filed per the Estates Act section 35, or you
may need to get an order that dispenses with the bond requirement. See the
Estates Act on the E-laws website at: http://www.ontario.ca/laws/statute/90e21#BK33. Also see Rule 74.11 of the Rules of Civil Procedure at: http://www.ontario.ca/laws/regulation/900194.
- In order to dispense with a bond, or reduce the amount of the bond, you
must file an affidavit stating that the deceased’s debts have been paid, or
list all debts outstanding, and provide information about whether the
deceased owned any businesses.
- In applications with a will, where you are seeking an order dispensing with
the requirement to file a bond, a completed Form 74.12 Consent to
Applicant’s Appointment as Estate Trustee With a Will must be filled out
by each beneficiary, sent to you, and filed with the court.
- In applications without a will, where you are seeking an order dispensing
with the requirement to file a bond, a completed Form 74.19 Consent to
Applicant’s Appointment as Estate Trustee Without a Will must be
received from all persons entitled to share in the estate and filed with the
court.
- The draft order dispensing with a bond must contain both a header and
backsheet. See the format of a header and backsheet on the Ontario
Court Forms website at www.ontariocourtforms.on.ca.
- When you complete the affidavit at the end of either of the following forms, you
should put your surname first, and your given name last (e.g. Doe, John):
- Form 74.4 Application for a Certificate of Appointment of Estate Trustee
With a Will (Individual Applicant), or
- Form 74.14 Application for Certificate of Appointment of Estate Trustee
Without a Will (Individual Applicant),
Issues specific to Applications for a Certificate of Appointment of Estate Trustee With a
Will
- An Affidavit of Execution of Will or Codicil (Form 74.8) signed by one of the
witnesses who observed (witnessed) the testator sign the will must be filed
together with the original will marked as exhibit "A" to the affidavit. If you do not
have an affidavit of execution and the witnesses cannot be found or both have
died, an affidavit attesting to the signature of the testator must be filed. This
affidavit should be made by a person (preferably not a beneficiary under the will)
who is familiar with the signature of the testator, such as an employer or bank
official who has a signature on file for comparison.
- On Form 74.4 Application for a Certificate of Appointment of Estate Trustee With
a Will (Individual Applicant), only answer the question regarding an election
under section 5 of the Family Law Act if you are the spouse of the deceased.
- Where the will states that a person other than the applicant has the right to apply
for the certificate of appointment of estate trustee (or succeeding estate trustee),
that person must renounce (give up) his or her right by completing Form 74.11
Renunciation of Right to a Certificate of Appointment of Estate Trustee (or
Succeeding Estate Trustee) With a Will. This must be indicated on the
application (Form 74.4) and on Form 74.13 Certificate of Appointment of Estate
Trustee With a Will.
- If the applicant is not named as estate trustee in the will, consent to the
applicant’s appointment (Form 74.12 Consent to Applicant’s Appointment as
Estate Trustee With a Will) must be given from beneficiaries who, together, have
a majority share in the value of the assets of the estate.
- If one or more estate trustees named in the will or codicil is not an applicant by
reason of death or renunciation, indicate this information on the application (Form
74.4) and on Form 74.13 Certificate of Appointment of Estate Trustee With a Will.
- If a will and/or codicil (a supplement or appendix to a will) refers to a
memorandum, the memorandum must be filed with the court. If no memorandum
can be found, an affidavit must be filed indicating this,as well as the efforts made
to find it.
- All beneficiaries named in the will must be served with Form 74.7 Notice of an
Application for a Certificate of Appointment of Estate Trustee With a Will, or an
explanation must be given (in Form 74.6 Affidavit of Service of Notice) as to why
a beneficiary has not been served (e.g. address unknown, beneficiary has died,
gift given prior to the deceased’s death or gift no longer exists.)
- Form 74.7Notice of an Application for a Certificate of Appointment of Estate
Trustee With a Will must be marked as "Exhibit 'A'" to Form 74.6 Affidavit of
Service of Notice. The exhibit must be stamped and signed by the same
commissioner for taking affidavits.
- The original will must be marked as "Exhibit 'A'" to the affidavit in Form 74.4
Application for a Certificate of Appointment of Estate Trustee With a Will
(Individual Applicant), and the exhibit must be stamped and signed by the same
commissioner for taking affidavits. The exhibit stamp should appear on the back
of the signing page of the original will.
- On Form 74.8 Affidavit of Execution of Will or Codicil, the address of the second
witness must be given in paragraph 2.
- If no Form 74.8 Affidavit of Execution of Will or Codicil is found, an affidavit must
be filed explaining this, and setting out the efforts made to find the persons who
witnessed the testator’s signature on the will. (The testator is the person who
made the will).
- On Form 74.13 Certificate of Appointment of Estate Trustee With a Will, the
address of the court must be typed under the Registrar’s signature line. Do not fill
in the date on this form. Also file a plain, unmarked copy of the will. The
certificate of appointment and the copy of the will attached will be impressed with
the court seal.
Issues specific to Applications for a Certificate of Appointment of Estate Trustee Without
a Will
- You must be an Ontario resident to apply. See section 5 of the Estates Act on the
E-laws website: http://www.ontario.ca/laws/statute/90e21#BK33
- If you answer a question that makes it unclear as to whether an earlier marriage
of the deceased person had been ended by divorce, you must attach a schedule
to the application with information including the date of the marriage, date of
divorce and steps that have been taken to verify that the divorce has taken place.
- On Form 74.14 Application for Certificate of Appointment of Estate Trustee
Without a Will (Individual Applicant), where you explain why you are entitled to
apply for the certificate of appointment of estate trustee, you must include
information relating to consent given by persons who are entitled to a share in
the distribution of the estate and who, together, have a majority interest in the
value of the assets of the estate.
- Depending on the priority set out in Part II (Intestate Succession) of the
Succession Law Reform Act, a Form 74.18 Renunciation of Prior Right to a
Certificate of Appointment of Estate Trustee Without a Will may need to be filed.
See the Act on the E-laws website at: http://www.ontario.ca/laws/statute/90s26#BK83
- On Form 74.14 Application for Certificate of Appointment of Estate Trustee
Without a Will (Individual Applicant), in the section where person persons entitled
to share in the estate are listed, if a person who is not a spouse, child, parent,
brother or sister of the deceased is listed, you must make clear the family
relationship between the deceased and that person, which explains why he or
she is entitled to share in the estate.
- All persons entitled to a share in the estate must be served Form 74.17 Notice of
an Application for a Certificate of Appointment of Estate Trustee Without a Will,or
an explanation as to why a person has not been served must be indicated on
Form 74.16 Affidavit of Service of Notice (e.g. address unknown, person has
died).
- On Form 74.20 Certificate of Appointment of Estate Trustee Without a Will, the
address of the court must be typed under the Registrar’s signature line. Do not fill
in the date on this form.
- Form 74.17 Notice of an Application for a Certificate of Appointment of Estate
Trustee Without a Will must be marked as “Exhibit ‘A’” to Form 74.16 Affidavit of
Service of Notice. The exhibit must be stamped and signed by the same
commissioner for taking affidavits.
We hope this list is helpful to you in completing your court documents. Below are links
to helpful resources:
Estates Information and Resources:
