What is Probate – Part 2

Date: 27 Feb, 2019| Author: Fred Streiman

To explain what probate is, we could do no better than paraphrase a statement by the British Columbia Court of Appeal.

Probate is strictly speaking, the proof of a deceased’s will. In granting probate, initially court authorities and later, the civil court certifies that a document, put forward was indeed the deceased’s last will.

A grant of probate has always had secondary purposes as well. A court granting probate examines not only the authenticity of the will but also its validity, both in terms of formality and the capacity of the testator and the legal capacity of the person appointed as executor to act as such.

A little wordy, but that encapsulates what probate is. However, as we explained elsewhere, probate is only mandatory in certain circumstances and is generally avoided if possible due to the expense and exposure to pay estate administration tax to the Province of Ontario. Probate is necessary, primarily in two situations. Firstly, if there is a dispute between various parties and then the court’s seal, is a certification of a document as indeed being the last will and testament is necessary as a starting point and also to confirm the authority of the executor. The second and most common reason is when a third party, holding an asset of the deceased insists that the will be probated so as to protect them from any later discovered competing claims, including claims of a subsequent will.

One must recognize that the executor’s authority comes from the will and not from probate. A will prepared is merely a fancy document with no effect whatsoever until its maker’s death. It is then it is activated and put into motion simply by the death of its maker.

Despite the general rule that probate is required in disputed estates, there are a few exceptions.

Proceedings surrounding an application to pass accounts, varying testamentary trusts and the removal of executors have been held not to require the executor to apply for probate. However, that is a practice that generally is not followed except under the heading of the passing of accounts unless that process itself is contested.