June 12, 2014

A recent decision of Justice D. M. Brown, Re Estate of Albert Applegath III, provides an overview of the necessary steps a foreign executor must take to have her authority recognized in Ontario.

Albert Applegath III died a resident of New Mexico. His will appointed his wife, Clavis, as executor of his estate. After applying to the New Mexico district court, Clavis was granted “Letters Testamentary” appointing her as the personal representative of Albert’s estate.

Albert owned some assets located in Ontario, namely royalties payable from Wesdome Gold Mines Ltd. Before continuing the royalty payments to Albert’s estate, Wesdome required formal recognition of Albert’s will in Ontario.

One of the beneficiaries of Albert’s estate, Carmen Consuelo Applegath, applied to the Ontario courts for a certificate of appointment of estate trustee with a will. In explaining why Carmen’s application was improper, Justice Brown reviewed the laws of estates in Ontario:

(1) Generally, probate of any particular will is only granted once.

(2) The appointment of a personal representative in another jurisdiction does not give that person any power over the deceased’s assets located in Ontario.

(3) There are two ways a foreign estate trustee may seek to be recognized in Ontario: (i) confirmation by resealing (this applies only to grants of probate made in other Canadian provinces or the United Kingdom) or (ii) application for ancillary appointment of an estate trustee with a will (applies to grants of probate made anywhere else).

In this case, the court held that it would not have been appropriate for the Ontario court to “re-grant” probate to either Clavis or Carmen. The proper procedure would have been for Clavis to make an application for an ancillary appointment in Ontario (because the original grant of probate occurred in the USA).

Justice Brown noted that in argument it was submitted that Clavis had resigned from her position in New Mexico. However, her resignation form had not been filed with the Ontario courts and the reasons for her resignation were not in evidence.

Justice Brown left the Applegath family with 2 options to move forward:

(1) If Clavis is no longer capable of administering Albert’s estate, a succeeding executor can be appointed in New Mexico and that person can apply for an ancillary appointment in Ontario; or

(2) Clavis can apply for an ancillary appointment in Ontario of her nominee whose power will be limited to dealing with estate assets in Ontario.

Justice Brown held that the second option would only be available to Clavis if she filed sufficient evidence explaining why she could not administer the estate assets in Ontario on her own.

Justice Brown concluded by noting that an application for ancillary appointment can be processed by the Estates Office as it is a routine application, while an application to appoint a nominee must be brought before a judge.

The lesson from this decision: pay close attention to the rules when making an application for probate.