Anyone who follows our blog articles would be familiar with the name of Justice Fred Myers. We recently posted a blog article titled Captain Brave – Judge Fred Myers. Almost immediately after that posting, on October 4, 2026, Justice Myers was elevated to the Ontario Court of Appeal, the second highest court in the entire country. Congratulations to Justice Myers.
Often our clients will ask why is it necessary that they obtain probate and incur all of the expense, headache and effort that it entails. A lot of our practice as Will and Estate Lawyers is geared towards estate planning so as to avoid the necessity of probate upon the death of the willmaker. However sometimes probate is a beneficial process, aside from those circumstances in which the bank or other institution holding the willmaker’s assets insist upon it. Occasionally the executor of their own accord should be seeking probate. To remind everyone, probate is the process by which a court certifies a document as being the last Will of the willmaker and further appoints someone as the estate trustee also known as the executor. Obtaining probate confirms the executor’s authority. The executor is fully authorized to administer the terms of the Will. Another important aspect of obtaining probate is it protects the executor from a claim by a beneficiary of a later discovered Will from claiming that you should never have recognized the first Will, and that there is another valid Will out there. In essence, once the court certifies the Will i.e. by the granting of a Certificate of Appointment of Estate Trustee commonly referred to as probate, the executor has been formally appointed by the court and has all of the formal authority it entails. It is not the executor’s fault if a different Will is put forward. Everyone can rest upon the authority granted by the court, including the executor from a later unhappy party. Wills and Probate Lawyers who have experience can guide their clients accordingly.
Normally these blogs deal with matters touching on the work of Wills and Estate Lawyers and Estate Litigation Lawyers. This blog is quite different. We have written many times about the no nonsense decisions of Ontario Superior Court Judge Fred Meyers. If you want to learn further about him, just use the search function on our website. However, what I did not know and had largely been kept under wraps was his quick-witted decision that avoided what could have been a catastrophe in his court. The incident which took place on August 16, 2019 has largely been kept under wraps for various reasons and it was only recently revealed in a recent Ontario Court of Appeal decision. Judge Myers was sitting on a family law case when the unhappy ex-husband chillingly told everyone that he was leaving the courthouse with his child, despite the fact that he did not have custody. He then went on to state that the laptop computer he had brought into the courthouse was actually a bomb and that if anyone attempted to interfere with him it would explode. He insisted that his daughter would be put on a plane to Turkey within two hours and then he would be taken to the airport with the various court staff as his hostages. Judge Fred Myers then perpetrated a ruse after he secretly hit the panic button that all judges have, which also initiated a 911 call. He indicated surreptitiously to the police on the 911 call what was happening. While everyone from the courtroom scrambled away Judge Fred Myers remained calm and collected, ducked under his heavy wooden bench and braced for a blast. The staff were terrified and traumatized, but Myers ensured that he was the last to leave. The Police arrived and the unhappy father was arrested. He had brought with him duct tape and zip ties to restrain people. Fortunately, the bomb was a fake and the father was heavily penalized for his terroristic behaviour. Despite the fact that he had no criminal record and an excellent job in Canada he was eventually handed a nine-year prison sentence, which was affirmed by the Ontario Court of Appeal. The bomb plot revealed a lack of security measures to screen for such devices, which apparently has been remedied, and it is part of the reason for the delay in this matter being publicized. Once again Judge Fred Myers has shown his mettle, ability to lead and stay cool under the most strenuous of circumstances. Well done to Justice Myers who has since gone supernumerary – i.e. semi retired.
Apologies for this blog sounding like an advertisement for experienced Will and Estate Lawyers. The recent Ontario Court of Appeal decision in Haddock v. Haddock underscores the importance of the “What if Lawyer”. The case which went all the way up to the Ontario Court of Appeal dealt with the estate of a woman who died in 2022. She wrote her Will in 2012 and at that time a major part of her estate was a family cottage, which of course considering our love of properties on the shore of a lake, escalated dramatically in value from the date that she drafted her Will until she died. For family reasons, it was important that the cottage end up in the hands of one of her three children. Her will called for her estate to be divided equally amongst her three children. However, what was not clear from her Will was whether or not that cottage, which was worth more than a third of the estate, needed to be equalized with the deceased’s other children. In essence, the son who inherited the cottage which was more than one third of the value of the estate, did not want to pay a premium to his siblings. The court used the armchair rule of Will interpretation, which is discussed in a number of recent cases starting with Ross v. Canada Trust Company 2021 ONCA and the Court of Appeal of Manitoba in Zindler. It asks the court to look not only at the words of the Will, but were the surroundings, circumstances and most importantly the intent of the willmaker at the time of the wills signing. Estate Litigation Lawyers are always neck deep in these issues.
It is not difficult to consider the amount of effort that is required at a trial to meet the wide-open canvas of evidence that can be put before the court to assist it in interpreting a Will. Wide open usually also means very very expensive. Wills and Probate Lawyers need to be attuned to these issues.
The thrust of this blog is the importance of a What if Lawyer. When the Will was written, the question that should have been put to the testator had she indeed meant to divide her estate equally amongst her three children is what if the value of the cottage is greater than one third of the value of her entire estate. It would not have been impossible for the willmaker to have spent all of her other assets taking care of herself at the end of her life in contrast with a cottage that if it was not sold could increase in value. The what if scenario. At Dale Streiman Law firm, we do our best to ask these what if questions to the willmaker who often have not considered that possibility.
For a number of years, the Province of Ontario has levied a probate tax known as the estate administration tax. The first $50,000 of an estate is exempt, but beyond that a levy of 1.5% is administered by the provincial government rounding up to the nearest $1,000 value. The only deduction from an estate’s valuation are registered mortgages or encumbrances against real estate. So, it is not the value of a house that is subject to the tax, but rather its net value after deducting any registered mortgages. All other assets are simply taken at market value. Other non secured debts of the estate are not a deduction.
It is mandatory that the estate administration tax and the required Estate Information Return “EIR” is filed with the application for probate and that the tax is paid at the time of the filing of the application.
It is a mandatory obligation not only of the executor but also the lawyer that facilitated the filing of the application and the return that is required. The Will and Estate Lawyers at Dale Streiman Law L.L.P. are experienced in this aspect of probate.
It is not uncommon for the executor not to have all of the necessary information for your estate lawyer to be able to file the EIR at the time of the filing of the application. Banking records, valuations of assets and other details can take a significant amount of time and often executors do not wish to wait until all of that information is available before filing. Frequently, an application may be filed on the basis of it being an estimate with a requirement that upon the information being obtained that an amended EIR must be filed and if any further taxes are owing, they are to be paid. Wills and Probate Lawyers who specialize in this area understand the nuances of this process. Something lawyers who dabble in Estates, such as general practitioners fail to understand.
This cumbersome probate application and these taxes are the reason that we have developed the “Full Monty” probate avoidance strategy. Using our search function, you can look up details with respect to the “Full Monty”.
It is a serious offense under The Estate Administration Tax Act to file a false statement or to facilitate the filing of one. One can even be imprisoned up to two years for such an action. Furthermore, the EIR is a sworn affidavit, and it is a criminal offense to swear a false affidavit.
Another issue is seeking a refund if one innocently puts forward an exaggerated value of an asset based upon an erroneous assumption. This leads to an extremely difficult scenario of seeking a refund which cannot be obtained unless the application was put forward as an estimate.
The filing of the Estate Information Return and the payment of the estate administration tax is something that our firm regularly assists our clients with. It is baked into the service we provide and occurs on every estate we seek probate. Another issue is an estate that has no money aside from those assets that are reflected within the application for probate. As an example, the only asset of an estate is a house, and until it is sold there are no funds to pay the estate administration tax. With some difficulty, one can make an application to the court seeking a deferral of the payment of the estate administration tax. The judges of the Toronto court who have wide influence across the province have indicated that they will no longer automatically grant such a dispensation but will require the executor out of their own personal funds to pay the estate administration tax at the time of filing. Tricky stuff and needs the hand of experienced probate lawyers.
More and more individuals are looking for assisted reproductive techniques. The question for Will and Estate lawyers is what advice to give and how does this impact a will. The law on this touchy subject is the Assisted Human Reproduction Act , “AHRA” which replaces common law/property law across the country. One can only use reproductive material in accordance with the AHRA. You cannot simply gift in one’s Will your reproductive material. This should have been canvassed with the clinic in which the sperm or embryos were stored for later use. The question from a Wills and Probate lawyers perspective is what happens with this reproductive material after death. It can only be used by the donor’s spouse or common law partner for their own reproductive purposes. Aside from research purposes no one else can use this material, not even the donor’s family. This is a highly complex area. There are also consent aspects under the AHRA. However, one should make a notation of the existence of such reproductive materials in the willmaker’s Will otherwise there is a very good chance that your executor will not even know that they exist. The Estate Lawyers at Dale Streiman Law LLP can assist with this issue.
The applicability of Ontario law to indigenous persons is a complicated one, and the paramount law is the federal Indian Act. The Ontario Estates Act and Estates Administration Tax Act indicate that for a deceased indigenous person ordinarily living off the reserve, Ontario law applies. This is important as to whether or not the province’s probate tax of 1.5% would apply. This needs careful consideration. A few scenarios arise. If the deceased was a status Indian person, who resided off the reserve and had property off the reserve, the estate administration tax also known as probate tax is payable on the value of that property.
Alternatively, if the deceased was a status Indian person who resided off reserve, had property on a reserve, but that reserve property is being transferred to another status Indian the estate administration tax aka probate tax is not payable on the value of that property. Wills and Probate Lawyers come across this situation regularly.
None of this is simple. When we deal with indigenous client’s their reserve or Tribe often has a legal team that can offer assistance.
One of the things that your experienced Will and Estate Lawyers will consider is who are you appointing as the executor aka trustee of your Will. The executor is the person that carries out the instructions you set out in your Will. You would think that you had free reign to name anyone that you wanted to and to a degree this is correct. Not only that, but the courts have has also indicated more than once that the choice made by the willmaker is to be shown great deference. However, there are technical difficulties when you name someone who does not live in Ontario as an executor. The Estates Act Section 5 baldly states that letters of administration (probate) shall not be given to someone who does not live in Ontario. The court has the ability to override that provision, but that may require a bond which is a which is a long and potentially costly process. Another scenario is if there was no Will whatsoever then again with the courts per permission and in all likelihood a bond, will be required for such a person be appointed. That generally will require the consent of all of the named beneficiaries. Special dispensation is given to residents of the Commonwealth. So, you do not need a bond for your Uncle in Malta, but yes for your sister in Buffalo. Estate Lawyers keep this at the front of their minds when taking will instructions. Dale Streiman Law LLP takes pride in its work as one of the Lawyers in Brampton for Wills.
A bond is required to accompany any application for a Certificate of Appointment of Estate Trustee, formally known as probate, when there is no Will or if there is a Will when the person applying to be appointed as estate trustee was not named as an Estate Trustee of the Will, or where the applicant neither lives in Canada, or a country that is a member of the Commonwealth. So an Estate Trustee (aka an executor) who lives in Malta as an example, does not need a bond, but your Uncle in Buffalo does. This is set out in the Estates Act, Section 6. Experienced Wills and Probate have to deal with this complication frequently.
Generally, bonds are obtained from insurance companies and there are a limited number of them that will issue a bond. There is a significant premium, and you have to qualify. The purpose of the bond, which generates an expensive premium, is to guarantee that the estate trustee appointed by the court will not abuse or run off with the estates’ assets. The court has the ability to dispense with the necessity of a bond, but that can require a relatively expensive court application. The law on this can be found in The Estates Act section 35 and Rule 74.11 of the Rules of Civil Procedure. The cost of a bond will vary depending on the size of the estate. If the estate is worth less than half a million dollars, the bond premium can be anticipated at between 1.5% and 2% of the estates’ value. If the estate is worth half a million dollars, you can expect a premium of 1% to 2% in the estates’ value, and if the estate exceeds one million in value, the bond premium will be somewhere in the region of 1% to 1.5%. The bonding company will want a great deal of information about the applicant, all directed towards the financial responsibility and liquidity of the applicant. As Will and Estate Lawyers we can assist in negotiating these bonds or drafting a motion for the court to dispense with the bond. The consent of all beneficiaries is generally required, but in the case of a minor beneficiary that is not a enough. In the case of a minor beneficiary (ie under the age of 18) the Office of the Children’s Lawyer must become involved. This now moves to the realm of Estate Lawyers, who have experience in Estate Litigation.
The decision by the Ontario Court of Appeal, which upheld the trial decision of Justice Chown in the Stewart Estate v. Stewart 2025 ONCA 575, is a clear lesson that preparing a Will requires the hand of an experienced Wills and Probate Lawyer rather than the casual work by a Jack of all trades lawyer, who drafts wills as a very casual sideline. We encounter this frequently in which potential clients who are only driven by the quoted fee can always find another lawyer who will do it for less.
Our experienced Will and Estate lawyers will ask the tough questions, what if? When drafting Wills and Power of Attorney, our job is to be the eternal pessimist in coming up with hypothetical scenarios that could befall the client. That is the drafting lawyer’s job and ignoring these questions simply leads to a few dollars saved at the time of drafting the Will and many thousands of dollars and expenses trying to fix the problem after death. In the Stewart case, a husband and wife had 13 children. In 1989, the husband who owned two farms drafted a Will and made a bequest of the farms to two of the children based upon the payment of what was then their market value. After the parents had died many years later, the farms had skyrocketed in value and there were huge capital gains taxes in excess of $600,000 to be paid. There was nowhere else other than selling the farms for the estate to be able to come up with the money to pay the taxes. Many questions arose, one of which was whether or not despite the fact that there were specific bequests of the farms, could the estate trustee sell the farms to pay the taxes. Selling the farms would have of course frustrated the clear intention of the Will that the two sons were to be benefited far in excess of their 11 siblings. However, where else was the money to be obtained, and the estate trustees aka executors would have faced personal liability for not ensuring that the valid debts of the estate were paid.
The court in the end ordered that the farms could be sold, even though the two beneficiary sons had proposed paying the tax liability themselves in an effort to retain the farms. This is an unusual scenario for Estate Lawyers. This required the input of experienced Estate Litigation Lawyers to convince the court of the only possible solution. All of this could have been avoided if the client had hired an experienced Wills Lawyers Brampton who would have asked the pessimistic hypothetical questions that are necessary to explore.
This complexity required an application to the court to provide guidance on what the estate trustees could and could not do. From a cost perspective, an extremely expensive proposition, but a critical one.
