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Estates & Wills & Trusts

Rulings provide contrasting views on court's role in probate

Although a pair of recent Ontario Court of Appeal decisions address the issue of a court’s jurisdiction and role in matters of probate, the rulings send a mixed message on the issue, Toronto estates and trusts lawyers Ian Hull and Suzana Popovic-Montag write in The Lawyer’s Daily.

As Hull, co-founding partner of Hull & Hull LLP, and Popovic-Montag, managing partner of the firm, explain, on March 8, 2016, the Court of Appeal released decisions in Spence v. BMO Trust Co. 2016 ONCA 196 as well as Neuberger v. York 2016 ONCA 191. In BMO, they write, the court held that it had a limited role in dealing with wills matters, while in Neuberger, it found that the court has a wide jurisdiction.

In BMO, they explain, the Court of Appeal “set aside the lower court decision of Justice Cory Gilmore and held that a court cannot enter into a public policy based review of a private will. In BMO, Justice Peter Lauwers, in his concurring judgment, stated that a will is ‘a quintessentially private act of personal expression.’ Furthermore, Justice Lauwers noted that, in probating a will, there is ‘no state action that engages the Charter in the relevant sense.’”

In emphasizing the private nature of a will and the limited role of the courts in wills matters, Lauwers also wrote: “The basic probate question is whether the will itself is formally valid, the testator was of sound mind, and the will was not made in suspicious circumstances. In probating a will the court is not concerned about the validity of specific bequests and does not require proof that bequests in a valid will are non-discriminatory. The court neither condones nor approves of particular bequests.“

However, explain Hull and Popovic-Montag, with regard to the issue of the nature of the court's role and jurisdiction in probate, “in contrast to the BMO decision of the Court of Appeal, which espoused a limited role of the court – the Court of Appeal in Neuberger noted: ‘Probate is the court procedure by which a will is proved to be valid or invalid: Black's Law Dictionary, 8th ed. (St. Paul: Thomson West, 2004). The term is also commonly used to refer to the court order certifying that the particular writings constitute a deceased's will.’”

Both decisions, they explain, relied on the reasons of Justice Maurice Cullity in Otis v. Otis [2004] O.J. No. 1732, which is the leading case on the jurisdiction of the court in will matters.

In BMO, the court noted that the Otis decision stands, in part, for the proposition that the court's jurisdiction in matters of probate in Ontario is narrow.

However, referring to the same Otis decision, Justice Gillese in Neuberger emphasized the broad jurisdiction of the court in probate matters, say Hull and Popovic-Montag.

In Neuberger, Gillese wrote: “The court's jurisdiction in probate is inquisitorial. That is, the court's role is not simply to adjudicate upon a dispute between parties. It is the court's function and obligation to ascertain and pronounce what documents constitute the testator's last will and are entitled to be admitted to probate. Further, the granting of probate does not bind only the parties in the proceeding. Unless and until probate is set aside, it operates in rem and can affect the rights of other persons. The court also has a special responsibility to the testator, who cannot be present to give voice to his or her true intentions.”

In addressing the policy considerations which underline the jurisdiction and the role of the court, in Neuberger, Gillese added: “A will, however, is more than a private document. As explained above, a dispute about a will’s validity engages interests that go beyond those of the parties to the dispute and extend to the testator and the public. Once a testamentary instrument is probated, it speaks to society at large. Probate is an in rem pronouncement that the instrument represents the testator's true testamentary intentions and that the estate trustee has lawful authority to administer the estate. Because of this, the court has a responsibility to ensure that only wills that meet the hallmarks of validity are probated. It owes that duty to the testators whose deaths preclude them from protecting their own interests, to those with a legitimate interest in the estate and to the public at large.“

As Hull and Popovic Montag explain, it is in the context of the expanded view of the court’s jurisdiction in Neuberger that the "mixed message" is clearly observed.

"If it is accepted that there is indeed a public and expanded role of the court as described in Neuberger, then it is difficult for one to reconcile the BMO decision, from the same level of court and even one identical panel member, to judicially sanction a clearly racially discriminatorily motivated will,” they write.

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