Problem: An executor who will not show the Will of the deceased to family.
Possible solutions:
- Wait for the executor to probate and
- receive a copy in the mail, and if not
- obtain a copy from the Court
- Commence Court proceedings to
- compel the executor to act
- have someone else appointed the estate trustee.
These alternatives are discussed in more detail below.
There is no right to a ‘reading of the Will’ in Ontario and there is no obligation of an executor to conduct a reading of the Will for beneficiaries or other families.
Should the executor show a beneficiary the Will?
Usually, yes, at least the portion that affects that beneficiary. This is mandatory when the executor files an application to probate, and there are rarely good reasons to hold off.
A separate consideration is whether the executor should show the entire Will to a beneficiary. If the beneficiary is a ‘residual’ beneficiary, the answer is “yes”. If the beneficiary is a ‘specific bequest’ beneficiary, then whether to show all of the Will or only the specific bequest is at the discretion of the trustee which should be exercised balancing the benefits if any from transparency against the costs if any of disclosure.
Notice of Probate is Mandatory
When someone files an application for a Certificate of Appointment of Estate Trustee with a Will (that is, files for probate) the applicant must provide a notice (with a copy of the relevant portions of the Will) to each beneficiary under the Will.
Learn more about whether probate is required here.
The notice of a probate application sent to each beneficiary must be in the form specifically required by the Court and must be sent to each beneficiary by regular mail. Learn more about the requirements for an Application for a Certificate of Appointment of Estate Trustee here.
Therefore, if a ‘potential beneficiary’ has not received notice of a probate application then either
- the executor has not filed for probate, or,
- the individual is not a beneficiary named in the Will.
If the executor has filed for probate, the Will is a matter of public record and can be searched at the proper courthouse. This is the Court in Ontario having jurisdiction where the deceased ‘resided’ at the time of their death, and is usually the Court located at the seat of the county or in the GTA the ‘regional district’.
It is common to hire a process server to go to the relevant Courthouse, search the court file and take copies of the file including the Will.
No probate
If the executor has not applied for probate, then the solution is often to commence Court proceedings.
Depending on the circumstances, it may make sense to compel the executor to “apply or renounce the right to apply” as estate trustee, or, it may be better to ask a court to i) appoint an estate trustee during litigation, or, ii) pass over the named executor and appoint someone else as estate trustee.
Choosing between these options depends on a number of factors including the action or inaction of the executor, whether the executor is in a conflict of interest or is in conflict with the estate or other beneficiaries, and whether the estate trustee has demonstrated hostility to the beneficiaries to an extent that it is reasonable to assume that they will not administer the estate properly.
These proceedings should be commenced before the executor receives a Certificate of Appointment as Estate Trustee, and ideally before they apply for one.
Clearly, these proceedings require good legal advice and representation.
In these proceedings, good quality demonstrative (written) evidence is highly preferable. Correspondence from and to the executor is usually very important – letters, emails, and text messages to and from the executor (or their lawyer) are usually crucial.
Note that hostility of the beneficiaries to the executor is NOT a reason for removing or passing over an estate trustee nor a reason to appoint an ETDL. It is the hostility of the executor to the beneficiaries that matters.
A common reason for an executor failing to probate is that they are in an inherent conflict of interest. For instance, if the executor also lives in the house of the deceased, then they may have strong reasons to try to avoid probating.
Excluded? Consider other options before challenging the will
When someone is not included in a will a very common reaction is to think about challenging the will. As discussed here, will challenges are very difficult and expensive, and should only be undertaken after great thought.
If you have not been included in a will, it is important to recall that there is no obligation for a testator to benefit their children, and thus it is not uncommon for estranged children to not be included in a will.
‘Dependent support’ claims are very different from will challenges. They are independent of the contents of the will (and can be used even if there is no will at all) and when appropriate are often a much more direct route for relief than will challenges. They are particularly relevant for common law spouses who have no formal right to ‘inherit’ from the deceased. Learn more about dependent support claims.