In the ordinary course, probate proceedings in Ontario are straightforward and non-contentious. A testator’s Will names an estate trustee, the estate trustee prepares an application for a Certificate of Appointment of Estate Trustee to be filed with the court, and eventually a Certificate of Appointment is issued.
Occasionally, however, the named estate trustee is not the party applying for a Certificate of Appointment. Perhaps the named estate trustee predeceased the testator or has declined to seek that appointment. If an alternate trustee is named, then in the ordinary course they will be the party to apply. If, however, no alternate is named, then the appointment of an estate trustee gains added complexity and may introduce unexpected delay and cost.
If neither the named estate trustee nor the alternate seek that appointment, section 29 of the Estates Act provides that either the testator’s surviving spouse, next of kin, or a combination of the two acting in a joint capacity are permitted to apply. That said, the Estates Act also provides that applicants not named in the testator’s Will must be resident in Ontario. In an age that is increasingly tending towards remote work and lifestyles, non-resident candidates seeking to administer estates in Ontario are becoming increasingly common.
Avoiding Unnecessary Court Proceedings
The proscription on non-resident trustees is not a strict one, and there is case law to suggest that the court will be prepared to set aside the residency requirement on certain conditions – particularly, where the beneficiaries of the Estate have consented to the appointment of the non-resident and, if deemed appropriate, the proposed trustee posts the requisite security. However, while the appointment of an estate trustee named in the Will is generally accomplished on an over-the-counter basis, the foregoing requires a separate court application, brought by the proposed applicant and served on all interested parties. This introduces added cost and delay that the testator may not have intended.
We encourage testators to regularly review their testamentary instruments to minimize the likelihood of unexpected hurdles after death including the appointment of a non-resident trustee. In particular, testators should carefully consider the appointment of an estate trustee and whether the proposed trustee will be able or willing to accept the appointment. If not, the administration of the Estate might languish and incur unforeseen but potentially avoidable expense.
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