Quite often, we are contacted by law firms in foreign jurisdictions requesting assistance in resealing or confirming a foreign grant in Ontario to deal with assets located in Ontario.

My colleague Emily Hubling and I reviewed this topic back in 2019 (https://www.allaboutestates.ca/probate-becomes-international-affair/) and today’s blog is a refresher on the process of resealing or confirming a foreign grant, taking into account changes to the forms and court processes that have occurred since then.

Confirmation by Resealing of Appointment of Estate Trustee

A Confirmation by Resealing of Appointment of Estate Trustee (the “Resealing Certificate”) is obtained to “reseal” the appointment of an estate trustee with or without a will that was granted by a court in a province or territory in Canada outside of Ontario or a country within the Commonwealth.  In order to obtain the Resealing Certificate under r.74.08 of the Rules of Civil Procedure[1] (the “Rules”), the applicant must file:

• Form 74J – Application for Certificate or Confirmation of Appointment as Estate Trustee (“Form 74J”);
• Two court-certified copies of the original appointment under the seal of the court that granted it (dated within six months of the date of the Ontario application), with the will attached to it OR the original appointment document and one court-certified copy under the seal of the court that granted it;
• The security that is required by the Estates Act, if any;[2]
• Draft Form 74C – A Confirmation by Resealing of the Appointment of Estate Trustee, ensuring the statement that “A copy of the foreign grant that is certified by the court that issued it is attached” is included;
• The applicable estate administration tax based upon the value of the Ontario assets;
• While not specifically requested, I also file a notarial copy of the death certificate; and
• Such other material as requested by the Court.

The application and supporting material will be filed in the Courthouse where the Ontario assets are located.

In the past, there was a requirement that one of the court-certified copies of the original appointment would need to be marked as an exhibit to the applicant’s affidavit, however, it appears that this is no longer a requirement, with court staff being directed to accept the certified copy even if it is not marked as an exhibit (as per the most recent Estates Court Staff Procedures Manual issued by the Court Services Division of the Ministry of the Attorney General[3]).

Where there is a Will, security[4] is typically not required where the applicant is a resident of Canada or a Commonwealth country.  Where there is no Will, security will need to be addressed.  The applicant may wish to request, via affidavit, that the requirement to post security be dispensed with.[5]  Ultimately, the matter will be referred to a judge for determination.

Certificate of Ancillary Appointment of Estate Trustee with a Will

A Certificate of Ancillary Appointment of Estate Trustee with a Will (the “Ancillary Certificate”) is obtained when the estate trustee was appointed by a court outside of Canada by a country that is not a member of the Commonwealth.

The applicant does not need to be a resident of Ontario and does not need to be nominated by the beneficiaries who have a majority interest in the estate.

Pursuant to the Rules, to obtain the Ancillary Certificate, the applicant must file:

• Form 74J;
• Two court certified copies of the original appointment under the seal of the court that granted it (dated within six months of the date of the Application), with the will attached to it OR the original appointment document and one certified copy under the seal of the court that granted it;
• The security that is required by the Estates Act[6];
• Draft Form 74C – Certificate of Ancillary Appointment of Estate Trustee with a Will, ensuring that the statement “A copy of the foreign grant that is certified by the court that issued it is attached”, is included;
• The applicable estate administration tax based upon the value of the Ontario assets;
• As with the Resealing Certificate, I also file a notarial copy of the death certificate; and
• Such other material as requested by the Court.

If the applicant is NOT a resident of Canada or lives in a country that is a member of the Commonwealth, security must be addressed by either filing a bond with the application or making a request for an order dispensing with the requirement for a bond.

Certificate of Appointment of Foreign Estate Trustee’s Nominee as Estate Trustee without a Will

Where an estate trustee is appointed by a foreign court where there is no Will, and the foreign court is in a jurisdiction that is outside of Canada and not a member of the Commonwealth, the appointed foreign estate trustee must nominee a person within Ontario to act as the estate trustee to deal with the Ontario assets.

Pursuant to the Rules, to obtain a Certificate of Appointment of Foreign Estate Trustee’s Nominee as Estate Trustee without a will (the “Certificate”), the applicant who has been nominated by the foreign appointed estate trustee must file:

• Form 74J;
• Form 74K – Nomination of Applicant by Foreign Estate Trustee;
• A court certified copy of the document appointing the foreign estate trustee under the seal of the Court that granted it, marked as an exhibit to the affidavit of the applicant;
• A certificate under the seal of the foreign court that indicates that the foreign grant remains effective as of the date of the certificate (note that this certificate must be dated within six months of the date of the Ontario Application);[7]
• Security, the amount of which must be equal to the value of the Ontario assets;
• A draft Form 74C – Certificate of Appointment of Foreign Estate Trustee’s Nominee as Estate Trustee without a Will;
• The applicable estate administration tax based upon the value of the Ontario assets;
• As with the Resealing Certificate and the Ancillary Certificate, I also file a notarial copy of the death certificate; and
• Such other material as requested by the Court.

While security is otherwise required, the applicant may file a request for dispensing with the requirement to post security.

Don’t Forget to Translate

It is important to note that if a Will or other testamentary document produced in another jurisdiction is not written in English or French, then the document will need to be translated before being submitted to the Superior Court for the Resealing Certificate, the Ancillary Certificate or the Certificate.  The same applies if the foreign grant or death certificate is not written in English or French.

[1]      R.R.O. 1990, Reg. 194

[2]      R.S.O. 1990, c. E.21

[3]      In effect as of June 13, 2024

[4]      The amount of the bond to be posted is based upon the value of the Ontario assets.

[5]      If seeking to dispense with the security, you will also need to submit an associated draft Order with the application package.

[6]      The security required to obtain the Ancillary Certificate shall be based on the value of the Ontario assets – r.74.11(1)(f) of the Rules of Civil Procedure

[7]      If the court which issued the grant in the foreign jurisdiction will not issue a certificate indicating that the foreign grant remains effective, then the applicant must file an affidavit explaining why the certificate cannot be obtained and confirming that the certified copy of the document appointing the foreign estate trustee has been issued within 6 months of the Ontario Application.