Unfair burdens are put on homeowners’ families and heirs by delays at Toronto estates court

Dec 9, 2020 | 2020 Toronto Star Property Law Column



Bob Aaron bob@aaron.ca

When the heirs of a GTA deceased homeowner decide it’s time to sell the property, it typically takes the Ontario estates court many months to rubber-stamp probate documents allowing the sale to proceed.

This delay is causing significant hardship for families who are unable to close the transactions.

In Ontario, the probate process is formally known as an application for a Certificate of Appointment of Estate Trustee. This certificate gives the estate trustees the authority to transfer ownership in Ontario’s land registry system.

The application involves filing with the estates court the original will, a number of other forms, and a cheque for 1.5 per cent of the estate value over $50,000.

At the Toronto estates court office, the typical delay in processing probate applications — even before COVID — was eight months. Now a wait of 10 months or more is not uncommon.

Meantime, the property’s sale is on hold while the heirs pay for its utilities, insurance, mortgage and common expenses.

An opinion piece by a Toronto lawyer in the “Lawyer’s Daily” last month was highly critical of the staff at the Toronto estates court office.

Six months after filing an application for probate, this lawyer received a rejection letter. When he couldn’t get through by phone, he visited the court office and waited four hours in line. He was told that affidavit of the witness to the will was on an old form.

After filing the correct form, the lawyer received another rejection letter with three new reasons for bouncing the application including that the font on his documents was the wrong size.

A senior Toronto estates lawyer later told him that the court routinely rejects probate applications “for reasons that have nothing to do with common sense.”

Last month, I contacted Nicko Vavassis, communications manager for Ontario Attorney General Doug Downey, who said in an email the ministry “is aware of the impact of timelines for processing … probate applications … and is committed to updating and simplifying probate processes.”

The ministry, he noted, “recently introduced measures to streamline the processing of probate applications in the Superior Court of Justice and is working diligently to address the application backlogs that were created due to the COVID-19 pandemic.”

In fact, those backlogs existed long before COVID arrived in Toronto.

This past October, the ministry issued a notice that probate applications can now be submitted electronically — but payment of probate fees and the original signed will must be mailed or couriered to the court office. This defeats the purpose of electronic filing.

Expedited processing of an application can be requested only in cases where a deceased signed a sale agreement prior to death, or where funds are urgently needed to be released from a frozen bank account.

Vavassis said the ministry expects that newly-implemented measures will significantly reduce current processing delays. Personally, I have my doubts.

Archives

Contact Bob Aaron

Bob Aaron is a Toronto real estate lawyer and frequent speaker to groups of home buyers and real estate agents.
He can be reached by email at bob@aaron.ca, phone 416-364-9366 or fax 416-364-3818.

Aaron & Aaron specialize in Real Estate Law, specifically Sale of Rental, Condominium, Residential, Rural Recreation, Offer to Lease, Commercial, and New Construction