As part of the amendments to probate forms effective July 1st, 2022, the Ministry of the Attorney General is also addressing the process for dispensing with, or reducing the amount of administration bonds required in some probate application. O. Reg. 435/22 makes changes to both Rule 74.11, and to the Application Form 74A, setting out specific procedures and requirements for obtaining these orders.1
Subject to specific exceptions, administration bonds are required where the deceased died without a Will, or where the applicant for probate is either not named in the Will, or resides outside of Ontario.2 The administration bond must be twice the value of the estate, which significantly increases the costs of administering an estate.
Under subsection 37(2) of the Estates Act, the Court has discretion to either reduce the amount of the bond or dispense with it altogether, provided that the applicant is able to establish "special circumstances". Neither "special circumstances" nor the specific process for obtaining an order to reduce or dispense with the administration bond was set out in the Estates Act or any other legislation.
However, in 2008 case of Henderson (Re), the Honourable Justice David Brown established the requirements to be followed when applying for such orders. He indicated that an applicant seeking an order to dispense with the administration bond should file an affidavit addressing specific facts about the deceased, the estate and the beneficiaries, and attaching to the affidavit, as exhibits, any consents or other documents referred to in the affidavit. As well, the applicant was to provide a draft order, with specific wording for the reduction or dispensing of the administration bond.
These requirements have now been formalized by an amendment to Rule 74.11, and Part 10 of Form 74A.
Under new subrule 74.11(5), in cases where beneficiaries of the estate are all sui juris, and have consented to the reduction or dispensing of the administration bond, the applicant must file with the court a draft order (Form 74I), all required consents (Form 74H), and an affidavit setting out the information specified in subrule 74.11(6)3 (Form 4D).
In cases where consents cannot be obtained, new subrules 74.11(3) and (4) direct an applicant to bring a motion to the Court, in accordance with Rule 37.
New Part 10 of the probate Application form (Form 74A) sets out options to be selected, and provides guidance on satisfying the requirements to obtain an order to reduce the bond or dispense with the bond.
These changes will make the process of obtaining these orders easier for the applicant to complete, and court staff to process.
Footnotes
1. O. Reg. 435/22: RULES OF CIVIL PROCEDURE
2. Estates Act, ss. 6 and 36, Loan and Trust Corporations Act, s. 175(4).
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