Legal Dictionary

The Accountant of the Superior Court of Justice (“ASCJ”) is an employee of the Ontario government. The Accountant of the Superior Court of Justice is responsible for accepting all money paid into court pursuant to court orders, judgments, or statutes on behalf of minors and litigants.

More information about the ASCJ can be found at:
http://www.attorneygeneral.jus.gov.on.ca/english/family/pgt/ascj.pdf

A “certificate of appointment of estate trustee” is a document issued by the Ontario Superior Court of Justice which proves that someone has the authority to administer the estate of the deceased. It is often impossible to sell real estate owned by the deceased or to access the deceased’s money held at a bank without first providing a copy of the certificate.

When someone dies with a will, the proposed estate trustee (sometimes called “executor”) files an application for a “certificate of appointment of estate trustee with a will.” The application must be submitted at the courthouse in the district where the deceased lived at the time of death. The proposed estate trustee must submit the deceased’s original will along with the application form. Additional documents are required when the person proposing to act as estate trustee is not the named executor in the will.

A “certificate of appointment of estate trustee” is a document issued by the Ontario Superior Court of Justice which proves that someone has the authority to administer the estate of the deceased. It is often impossible to sell real estate owned by the deceased or to access the deceased’s money held at a bank without first providing a copy of the certificate.

When someone dies without leaving behind a (valid) will, the proposed estate trustee (sometimes called “executor”) files an application for a “certificate appointment of estate trustee without a will.”

Although anyone can apply to be the estate trustee of the deceased’s estate, Ontario’s Estates Act gives priority to the following people:

•  Married or common law spouse;

• Children (over the age of majority);

• Grandchildren (over the age of majority) if no child is living;

• Parents if no descendants;

• Siblings if no descendants or parents;

• Grandparent(s) of the deceased who dies without descendants, parents or siblings;

• Uncles, aunts, nephews, nieces and great-grandparents of the deceased who dies without descendants, parents or siblings

• Where there are no next of kin in Ontario, the Public Guardian and Trustee.

A “capacity assessment” is a formal assessment of a person’s mental capacity to make decisions about property or health care. Ontario’s Substitute Decisions Act requires capacity assessments to be conducted by qualified assessors.

A capacity assessment must address one or more specific questions about a person’s capacity, such as capacity to make a will, capacity to grant or revoke a power of attorney, or capacity to manage property. It is possible for someone to have capacity to do some things but not others.

A certificate of pending litigation (“CPL”) is a notice registered on title to land. The CPL notifies the public that the land is the subject of a legal proceeding. Anyone who does a search on the property through the Ontario Land Registry Office will be alerted to the CPL.

The CPL acts as an encumbrance on title to the land, making the land more difficult to sell, mortgage, transfer or otherwise deal with. A CPL is discharged (or removed from title to the land) when the underlying litigation ends or if it is removed by court order.

A “codicil” is an addition to a will. A codicil is usually made some time after the will was signed.

A codicil may vary a term in the will or provide greater clarity to the will.

A codicil forms part of the original will and is subject to the same legal requirements to be valid as a will.

Ontario’s Succession Law Reform Act defines “dependant” as anyone the deceased was supporting or was legally required to support immediately before his or her death. Dependants may include, but are not limited to, the deceased’s common law or legal spouse, parent, child, or sibling.

If a deceased has failed to provide adequate support for a dependant on death, the dependant person may bring an application for support from the deceased’s estate. The dependant’s claim is paid out of the estate before the rest of the estate is distributed according to the terms of the will.

The Ontario Estate Administration Tax Act requires all persons applying for a certificate of appointment of estate trustee to pay a tax on the value of the deceased’s estate. This tax used to be called “probate fees.”

The tax is calculated as follows:

• $5 for each $1,000 of the first $50,000 of the value of the estate, and

• $15 for each $1,000 of the value of the estate exceeding $50,000.

The person who was either named in the will or received a certificate of appointment of estate trustee and who has the authority to administer the deceased’s estate according to the terms of the deceased’s will.

The person named in the will to carry out the terms of the deceased’s will and administer the estate.

“Fiduciary” is a legal term describing a relationship between two people. Where one person is required to act in the best interests or for the benefit of another person, a “fiduciary” relationship exists between the two.

A fiduciary relationship may be found in many different types of relationships, but is commonly found where one person is entrusted with the management of another person’s finances. For example, a daughter who begins to act under her father’s power of attorney document is in a fiduciary relationship with her father – the daughter must only use her father’s money in a way that benefits him or is in his best interests and cannot prefer her own interests to the interests of her father.

When a person is incapable of managing one or more aspects of his or her personal care (including health care, nutrition, shelter, clothing, hygiene, and safety), a guardian of the person may be appointed by the court. A guardian of the person may be authorized by the court to make some or all personal care decisions on the incapable person’s behalf.

A guardian of the person is required to manage the incapable person’s personal care in accordance with a guardianship plan filed with the court. Among other information, the guardianship plan sets out the guardian’s plan for managing some or all aspects of the incapable person’s personal care.

A holographic will refers to a will prepared completely in the testator’s own handwriting. It is contrasted with a typed will. The Succession Law Reform Act imposes fewer requirements on a holographic will to be valid – most notably, a holographic will does not have to be witnessed by two persons in order to be valid.

Generally, “incapacity” means the inability (whether mental or physical) to do some act. All adult persons are presumed to be capable unless circumstances suggest otherwise.

The law distinguishes between different types of capacity. A person may be capable of doing some things while incapable of doing others. There are different legal tests for each type of capacity. Some examples of the different types of legal capacity include:

• capacity to make a will

• capacity to manage one’s own finances

• capacity to make one’s own health care decisions

• capacity to make or revoke a power of attorney

• capacity to enter into marriage

Legal term in Latin meaning “between the living.” The term is used to describe a gift or transfer of property made during a person’s lifetime. It is contrasted with a testamentary gift, which takes effect on death.

A “legacy” is a specific gift of property (either real estate or personal property) made in a will. For example, a legacy in a will might read: “I direct that $1,000.00 be paid to my daughter” or “I gift my antique solid gold watch to my brother.”

“Legal costs” are a lawyer’s fees and expenses (often called “disbursements”). A judge has the power to order that one party pay all or part of the opposing party’s legal costs (usually, the loser must pay the winner’s legal costs). In will challenges or guardianship applications, the court often (but not always) orders that legal costs are payable from the estate of the deceased or incapable person.

An incapable person or a minor is not able to start or defend against a legal proceeding on their own. Generally, a litigation guardian must be appointed to represent the incapable person or minor during the legal proceeding. A litigation guardian can be any capable adult person, but priority is given to the minor’s/incapable person’s attorney for property, guardian, or a government appointee.

A guardian of property has the authority to manage the finances and property of an incapable person (someone who lacks the mental capability to make the decisions themselves). A guardian of property is appointed by court order. A management plan is a necessary part of the application to become someone’s guardian of property.

The management plan sets out the incapable person’s assets, income, current and projected expenses, and provides the applicant’s proposed method for managing the incapable person’s finances.

Any person under the age of 18 is considered a minor. A minor cannot make a will (an exception is made for minors in the military). Minors also cannot start or defend against litigation on their own. In cases where a minor is involved in litigation, a “litigation guardian” must be appointed to represent the minor in the legal proceeding.

Creating multiple wills (as opposed to one will) is an estate planning tool to help reduce the amount of estate tax payable. The testator creates more than one valid will, each of which distributes different property and only when read together is the testator’s entire estate distributed.

After the testator’s death, only one will needs to be filed with the court office. The estate tax payable is calculated based only on the assets described in the will being submitted (and not the entire value of the estate).

Multiple wills are not effective in all cases and may cause more harm than good if done improperly. For this reason, a lawyer should be consulted.

The first step in challenging the validity of a will is to file a “notice of objection” to the will with the Ontario Superior Court of Justice. The notice of objection stops the court office from issuing a certificate of appointment of estate trustee with a will (i.e. the challenged will cannot be submitted for probate, making it harder to distribute the deceased’s estate according to the terms of the challenged will). The notice of objection gives the challenger time to bring an application to court to have the alleged will declared invalid.

In order to administer an estate of a deceased, it is often necessary to apply to the Ontario Superior Court of Justice for a certificate of appointment of estate trustee. Estate tax is payable at that time. This process is commonly referred to as “obtaining probate” or simply as “probate.” The certificate of appointment allows the estate trustee (sometimes called “executor”) to be recognized by third parties such as banks and government bodies as having the authority to distribute the deceased’s assets.

This is a legal principle set out in Ontario’s Rules of Civil Procedure, which governs all civil legal proceedings in Ontario. The proportionality principle requires a court to make orders that are proportionate to the importance and complexity of the issues being litigated. Litigants involved in estate disputes must keep this principle in mind when taking any step in a proceeding.

Any estate assets that are not explicitly gifted to someone in a will constitute the “residue,” or remainder, of the estate. The testator may gift the residue of his or her estate to one or more persons. If the will does not contain any instructions for paying out the residue, then the residue passes according to the rules of intestacy.

All lawyers are expected to act with reasonable care, skill and knowledge in the performance of their services. What is the appropriate standard of care against which the lawyer is judged will depend on the circumstances. However, if the lawyer falls below the standard of care and the client suffers a loss as a result, the lawyer may have acted negligently. In those cases, the client may be able to recover his or her loss from the lawyer.

A legal term referring to a person’s ability to make a will. If a person lacked testamentary capacity at the time they created a will, that will is invalid.

A will can be challenged on the grounds that the testator lacked testamentary capacity at the time the will was created. The court will decide, as a matter of fact, whether the testator had testamentary capacity.

There is no absolute test of capacity; it is determined from the circumstances. The following criteria are usually considered:

• whether the testator understands the nature and purpose of making a will;

• whether the testator understands (in general) the extent of his or her property; and

• whether the testator understands who are his or her dependants (if any) and who would expect to benefit from his or her estate.

A “testator” is person who creates a will which establishes the distribution of their assets on death. A female testator is sometimes referred to as testatrix. The plural of “testatrix” is “testatrices.”

A trustee is a person who holds legal title of an asset while the right to benefit from the asset is held by someone else (the beneficiary).

A trustee is in a fiduciary relationship with the beneficiary. The trustee owes a duty to the beneficiary to act in the beneficiary’s best interests with respect to the trust asset.

“Undue influence” is an act of coercion whereby one person makes another person do something that he or she does not want to do. A will created because of coercion or “undue influence” is invalid.

A will can be challenged on the grounds that it was the product of undue influence. The court will decide, based on all the circumstances, whether undue influence existed at the time the will was created.