estate trustee

What is Probate?

What is Probate?

After a person dies in Ontario, the executor may need to have the deceased’s Will “probated” by the Superior Court of Justice in order to obtain a “Certificate of Appointment of Estate Trustee With (or Without) a Will”.

The Certificate of Appointment of Estate Trustee With (or Without) a Will” may be required in order for the executor to access the deceased’s bank accounts and sell the deceased’s real estate. Read more →

Court of Appeal Rules on Testamentary Freedom

signing papers

From Spring 2016:

Estate Litigation lawyers were sad when the Ontario Court of Appeal recently overturned a lower court decision and effectively squashed estate litigators’ hopes of increased business litigating Wills.

The case is now famously known as the Spence Decision (Spence v. BMO Trust Co).

The case was about the validity of a Will in which a father excluded one of his two daughters. He specifically wrote:

“I specifically bequeath nothing to my daughter, Verolin Spence, as she has had no communication with me for several years and has shown no interest in me as a father.”

After the father died, the same daughter went to court and alleged that the real reason her father didn’t leave her money was because the father of her baby was white (the deceased

testator was black). The daughter called on the trial court to set aside the Will.

Affidavit evidence supported the daughter’s allegations and the lower court concluded that the Will, despite not offending public policy on its face, should be set aside. The result is that the will is void resulting in an intestacy (that is, dying as if there was no will). The estate would be split between the father’s two daughters.

The Court of Appeal disagreed with the lower court and decided that the Will should not be set aside and that the daughter challenging the will should not inherit. The Court of Appeal stated:

“The court’s power to interfere with a testator’s testamentary freedom on public policy grounds does not justify intervention simply because the court may regard the testator’s testamentary choices as distasteful, offensive, vengeful or small-minded.”

Do you think the Court of Appeal got it right?

In recent years there has been quite a bit of debate surrounding testamentary freedom. Some people are of the opinion they should be able give their hard-earned money to the persons and causes of their choice; that a parent should have the choice to leave money to their kids, or not to leave money to their kids; that a dog owner can leave money for the care of their dogs; that a husband can leave money to his mistress.

If you haven’t made a Will consider calling us and booking an appointment to review your wishes. Without a will, your assets will be administered in accordance with intestacy laws.

We can be reached directly at 416-224-1996 ext 217 or by email at ">.

Ashley Doidge (Associate) and Eric Gossin (Managing Partner).


Disclaimer: Welcome! Please note that this blog and its posts are intended for educational uses only. They are not intended as, nor should they be construed by the user as legal advice.  The use of this blog and this post does not create a lawyer-client relationship. Should you require legal advice for your particular situation then please feel free to contact us to arrange for an in-person consultation.

What is an Executor?


Also called “estate trustees”, executors are the persons responsible for administering an estate. Administration includes paying estate debts, collecting assets and distributing them in accordance with the deceased’s will, or if there is no will, then according to the laws of succession, which are codified by provincial statute.

Paying debts of the estate includes filing income tax returns in the year of the deceased’s death, (known as the “T1 terminal return”).  As well, if from the date of death until the time the estate is distributed, income was earned on assets, the executor will be required to file an additional estate return.

Additional filings and wind up steps may be required if the deceased carried on a business. Other debts such as loans and lines of credit must also be paid before the remaining assets are distributed to beneficiaries. Read more →