In the blog posted by Maureen Berry on October 9, 2020, my fellow clerks and I wrote about the welcome changes that were introduced that would allow for applications for certificates of appointment of estate trustee (the “Probate Application”) to be filed electronically.  It has now been six months since this change was introduced and I thought I might provide my thoughts on the process.

As a reminder, effective October 6, 2020, a Probate Application and its supporting documents (application affidavits, consents, notarial copies of proof of death, renunciations, draft certificates, motions) may be filed electronically by email to the Ontario Superior Court of Justice (the “Court”) in the jurisdiction where the deceased last resided.  Certain original documents such as the original Will, original Codicil, bonds, ancillary certificates and certified copies of documents are still to be physically filed with the Court.  The estate administration tax payment, or probate fees, must also accompany the original documents.  The electronic filing of the Probate Application will result in a digitally-issued certificate of appointment of estate trustee (the “Digitally-Issued Certificate”) being issued by the Court to the applicant.

While you may file the Probate Application electronically, there is nothing that precludes the applicant or their lawyer from filing a paper version of the Probate Application with the Court.  In some circumstances it might make sense to do so and to obtain the physical certificate of appointment of estate trustee (the “Paper Certificate”).

If filing the Probate Application electronically, the process requires that you must first file the Probate Application and supporting documents and wait for the court to assign the court file number before filing the original Will, the original Codicil, bonds, ancillary certificates and the estate administration tax.  It may take several follow-ups to obtain the court file number but to ensure that the original documents are not lost when filed at the Court, it is recommended to wait for the court file number to be assigned before sending the original documents.

Once the Digitally-Issued Certificate is obtained, the estate trustee or their lawyer can forward this to the various financial institutions or other entities it to deal with the assets of the deceased.  There may be some reluctance on the recipient to accept the Digitally-Issued Certificate, but they can be advised that they have the ability to verify both the document authenticity and document integrity by taking the following steps:

1. double clicking on the digital signature on the document to view the “Signature Validation Status” dialog box;
2. clicking on the “Signature Properties” to determine when the signature was applied (i.e. the date and time) and to determine whether the document was modified after the signature was applied; and
3. from the pop-up box, clicking on the “Show Signer’s Certificate” to review the certificate. This certificate should:
   • show the signer’s e-mail address. The signer’s e-mail address should be john.doe@ontario.ca (lastname@ontario.ca);
   • confirm that the certificate has been issued by the “Government of Ontario” or “MAG” or the “Ministry of the Attorney General”; and
   • indicate that the “Selected certificate path is valid” and that the relevant validation checks were completed at the time of signing.

It is important to note that the once inserted, the digital signature can only be removed by the person who inserted the signature.

If the recipient of the Digitally-Issued Certificate still is not satisfied, they have the ability to:

• email the individual who signed the certificate to confirm their role as a court staff member and to further confirm that the individual digitally signed and/or issued the Digitally-Issued Certificate;
• contact the court location to confirm the validity of the Digitally-Issued Certificate; or
• if necessary, obtain a court certified copy of the document with a wet signature. This will take additional time and will add further expense to the Estate.

From our recent experience in dealing with the financial institutions, we are seeing that there is still a need for a notarial copy of the Digitally-Issued Certificate to be provided.  We do provide notarial copies of the Digitally-Issued Certificate and include the email confirmation received from the Court confirming the delivery to our office.  To prepare the notarial copy, I forward the email received from the Court to the notary public so that they can review and compare the notarial copy against the Digitally-Issued Certificate.  I would be interested in hearing how others are preparing notarial copies of the Digitally-Issued Certificate.

I am uncertain whether this can be attributed to the ability to file the Probate Application electronically, but over the course of the last couple of months, I have noticed that the processing time for the issuance of either the Digitally-Issued Certificate or the Paper Certificate has drastically improved such that the previous 4-6 month delays in certain jurisdictions has been cut down to 1-3 months.  Perhaps, Courts in jurisdictions with larger populations are obtaining assistance from their counterparts in other jurisdictions that are less busy or the electronic filing system is actually speeding up the process.  Either way, this is a positive step in making the process for dealing with the filing of the Probate Application and the issuance of either the Digitally-Issued Certificate or Paper Certificate much more user friendly.

I have been utilizing the ability to file clients’ Probate Applications electronically since it was permitted in Ontario.  Aside from two times that I filed electronically and still received a Paper Certificate, the process has been quite easy.  As we evolve and continue to adapt the way we work remotely, I look forward to future advances in the administration of estates.