Estate Planning

Re McMichael Estate: Clarifying Jurisdiction Issues

By Hull & Hull LLP

A new Ontario decision, Re McMichael Estate confirms the need for estate trustees to seek relief in the jurisdiction where the testator resided at the time of their death.

The background to the case is as follows. The wife died in Toronto. She was predeceased by her husband who died in Orangeville. The wife was appointed as executor of her husband’s estate and if she was unable to act, the husband named the applicants as the alternate executors. The husband’s Will was never probated. The applicants were appointed estate trustees pursuant to a certificate issued by the Toronto Estates office. The estate trustees for the wife’s estate attempted to file an application record with the Toronto estates office but it was rejected on the grounds that some of the relief was being sought in the wrong jurisdiction. The Toronto estates office sought directions from the court with respect to this jurisdiction issue.

The application sought a variety of relief with respect to the wife’s estate but also sought an order declaring the husband’s Will as valid and that the applicants were the personal representatives of the husband’s estate. The named Respondents in the application all resided in Toronto.

The endorsement of Justice Brown found that in their application, the applicants were seeking a court order certifying their appointment as estate trustees with a will of the estate of the husband without using the form prescribed in Rule 74.04 of the Rules of Civil Procedure.  An application seeking an order certifying the applicants as estate trustee had to be filed in the office for the county or district in which the testator had at the time of death a fixed place of abode as required by s. 7(1) of the Estates Act and Rule 13.1.01 (1) of the Rules of Civil Procedure. After the application had been commenced, it would be open to the applicants to move to transfer the probate proceeding to Toronto or consolidate the application with the other application filed in Toronto.

Thanks for reading,

Diane Vieira

Full post as published by Toronto Estate Law Blog on August 27, 2008 (boomark / email).