Probate Application Returned With Deficiencies in Ontario: Fixes

Opening a letter from the court saying your estate application cannot proceed is stressful, especially when you are already grieving and managing the estate. In most cases, a returned application means something needs correcting, not that the application has failed for good.

This article explains what the notice is, what court staff check, which problems tend to come up, and how to respond so the file can move forward.

What the notice means

When you file for a certificate, court staff review the application. They check for other applications, objections and any later will deposited with the court. If they refuse to issue the certificate, the refusal is given in a Registrar's Notice (Form 74O) that states the reason.

Read the reason carefully. It tells you what the court needs, and your response should answer that specific point. If the notice is unclear, a lawyer can help you interpret it.

Check your package against the required list

Many returns come from a missing or incomplete document. The application package is made up of the following.

• Application (Form 74A).
• Affidavit of Service (74B) or Lawyer's Certificate of Service (74B.1).
• The affidavit(s) on execution (74D), condition of an altered will (74E) or holograph will (74F), as needed.
• A draft Certificate of Appointment (Form 74C).
• The original will and proof of death.

Applicants must send the application to beneficiaries before filing, and papers must be sworn before a commissioner. A missing service step or an unsworn affidavit is the kind of gap that can lead to a returned file. Forms are updated from time to time, so check that you are using the current versions on the Ontario court forms website.

Problems tied to no will or a bond

Estates without a will, or where the applicant is not the named estate trustee, have extra requirements. The applicant must file a renunciation from every person entitled in priority or in equal right who has not joined the application, and a consent (Form 74H) from persons who together hold a majority interest in the estate's value at the date of death.

A bond may also be needed. It is required if there is no will, if the applicant is not the named estate trustee, or if the applicant lives outside Ontario, other Canadian provinces and territories, and Commonwealth countries. Bond forms are Form 74L for an insurance or guarantee company and Form 74M for personal sureties, or you can bring a motion to dispense with the bond. If a beneficiary is under 18, the Office of the Children's Lawyer must be served.

If a beneficiary has filed an objection

Sometimes the problem is not paperwork. If a beneficiary has filed a Notice of Objection (Form 75.1), you must send a notice to the objector (Form 75.3) and file a copy with an affidavit of service. If a judge must decide an issue, a judge reviews the application.

Mandatory mediation under Rule 75.1 applies to several kinds of estate disputes, including objections to a certificate of appointment. An objection is a legal dispute, so this is a point to get advice before you respond.

What to do next

• Read the Registrar's Notice and identify the exact reason given.
• Compare your package with the required list and note what is missing or incorrect.
• Gather the missing items, such as renunciations, consents, bond forms or sworn affidavits.
• Send revised or additional material when court staff ask for it.
• Confirm that beneficiaries received the application and that service is properly proven.
• If there is an objection or the issue is unclear, speak with an Ontario estates lawyer before responding.

Keep copies of everything you send and note the dates. If the estate has real or time-sensitive assets, tell the lawyer so they can help prioritize.

Frequently asked questions