Estate Planning

Two, Two, Two Affidavits in One?

By Hull and Hull LLP

Justice Brown nostalgically opens his reasons for decision in Wallbridge Estate, 2010 ONSC 3409 (CanLII) as follows:

'Those of a certain vintage may remember the television ad for a certain brand of breath mint.  As the voice-over pronounced, 'Two, two, two mints in one', the two rolls of breath mint merged into one.  Does the principle of 'two mints in one' apply to probate applications?  More specifically, can the Estates Office process an application for a certificate of appointment of estate trustee with a will when the applicant has placed required information in one affidavit, instead of the two stipulated by the Rules of Civil Procedure?

After succinctly summing up the question, Brown J. provides the answer: Yes.

In Wallbridge, the applicant for a Certificate of Appointment filed an affidavit that indicated that the Will in question was signed in the presence of two witnesses, and also that there were certain changes to the Will after it was signed. The Application was rejected because, although the necessary information was provided, the Applicant did not submit an Affidavit of Execution and a separate Affidavit of Condition. The matter was then placed before Justice Brown.

In his decision, Justice Brown cited extensively from his decision in Estate of Michael O'Flynn (See blog here). There, Brown J. allowed a party to combine a Renunciation, Consent to Appointment and Consent to Dispense with Bond form into one document.

In Wallbridge, Brown J. noted that the affidavit evidence complied with requirements of the legislation (if not the Rules). 

He also noted three additional reasons for granting the Application. Firstly, the Court failed to communicate with the Applicant's counsel by email, which resulted in a waste of time. Secondly, the Applicant was dying of cancer: urgency was required. Thirdly, Brown J. referred to his O'Flynn decision and his complaint that the court was locked in the past with its reliance on a paper culture. Despite the concerns raised by Brown J. in O'Flynn, nothing to address the issue had been done. However, as a judge, he was constrained as to what he could do to address the problem. Thus, in addition to being satisfied that the technical requirements of the Succession Law Reform Act were complied with, he dispensed with compliance with the Rules 'out of sheer frustration that those in higher places in government who can take steps to improve the efficiency of the probate system in this province, and thereby enhance access to justice for the Ontario public, are not doing so.'

(As an aside, Certs, the mint referred to by Brown J. in his opening paragraph, has been ruled to be a breath mint, as opposed to a candy mint, by the U.S. Court of Appeals for the Federal Circuit in Washington.)

Thanks for reading.

Paul Trudelle

Full post as published by Toronto Estate Law Blog on September 16, 2010 (boomark / email).