Must an Executor Always Obtain Probate?
1. Introduction
The answer to the question is a straightforward No. But the question continues to be raised from time to time, so it will be useful to address the issue again. It was raised in the recent case, Kulyk v Kulyk.[1] I addressed the issue in my Wills text,[2] and the court in this case kindly referred to and quoted from that text on this point
2. Facts
Nicholas Kulyk died in 2013, survived by two sons, Roman and Andrew. Andrew has two children who are now adults. Nicholas appointed Roman his executor. He directed that the residue of his estate be divided into two equal shares. One share went to Roman and Roman was to hold the other share in trust for the Respondents, Andrew and his two children. Jonathan owned two properties in Toronto on High
Park Crescent and Florence Avenue.
Roman never applied for probate. He testified that he allowed the Respondents to reside in the Hyde Park property because Andrew’s children were then minors. He also allowed Andrew to use the garage on the Florence Property. That Property was rented to tenants. Roman paid all expenses of both properties out of the estate but is now paying the shortfall. The Will did not give the Respondents the right to live in either property. Apparently, Andrew had illegally rented out the upper floors of the Hyde Park Property, and the tenants of the Florence Property have repeatedly complained about Andrew and Jonathan’s misuse of the garage.
Roman wants to sell both properties. He brought this application for various orders, including vesting title in him and granting him possession as executor, declaring that he has the right to sell the properties and that no consents are required from anyone, and directing the Respondents to vacate the properties. In 2024 Roman had title to both properties transferred to him as executor. The Will gave Roman the authority to sell all of Nicholas’s estate that did not consist of money in such manner and upon such terms as he may decide.
3. Analysis and Judgment
Justice MD Faieta held that the fact that Roman had never applied for probate was not fatal to the application. As authority, he quoted the following passage from page 33 of the above text:
The question is often asked: Is it necessary to obtain probate [certificate of appointment of estate trustee] in every case? The answer is no. This is because executors derive their authority from the will rather than from the probate process. As a result, executors have the lawful authority to deal with estate property even if they do not obtain probate. Likewise, courts have jurisdiction over wills (and the executors appointed thereunder) regardless of whether they are submitted for probate. . . . The primary function served by probate [certificate of appointment of estate trustee] is therefore not to vest named executors with authority to deal with estate property but to authenticate to third parties that the persons presenting themselves as the executors are indeed the persons (more specifically, the only persons) with that authority.
Since the Applicant held the legal title to the properties, there was no need for a vesting order, an order granting possession, or an order declaring that the Applicant has authority to sell the properties since the Will gave him that authority.
However, his Honour granted an order directing the Respondents and any unauthorized tenants to vacate the Hyde Park Property and the Florence garage He also granted leave to the Applicant to issue a writ of possession of the Hyde Park Property. He required the Respondents to account for any rents they received and directed that the tenants should pay rent, if any, to the Applicant.
Although the Applicant claimed costs on a full indemnity basis, a substantial indemnity basis, or a partial indemnity basis, his Honour held that this was not a case for elevated costs and awarded him partial indemnity costs of $20,000, inclusive of HST and disbursements.
—
[1] 2024 ONSC 4213.
[2] Oosterhoff on Wills, 9th ed by Albert H Oosterhoff, C David Freedman, Mitchell McInnes, and Adam Parachin (Toronto: Thomson Reuters, 2021), §2.4.1, p 33).
Written by: Albert Oosterhoff
Posted on: October 22, 2024
Categories: Commentary, Probate, Wills
1. Introduction
The answer to the question is a straightforward No. But the question continues to be raised from time to time, so it will be useful to address the issue again. It was raised in the recent case, Kulyk v Kulyk.[1] I addressed the issue in my Wills text,[2] and the court in this case kindly referred to and quoted from that text on this point
2. Facts
Nicholas Kulyk died in 2013, survived by two sons, Roman and Andrew. Andrew has two children who are now adults. Nicholas appointed Roman his executor. He directed that the residue of his estate be divided into two equal shares. One share went to Roman and Roman was to hold the other share in trust for the Respondents, Andrew and his two children. Jonathan owned two properties in Toronto on High
Park Crescent and Florence Avenue.
Roman never applied for probate. He testified that he allowed the Respondents to reside in the Hyde Park property because Andrew’s children were then minors. He also allowed Andrew to use the garage on the Florence Property. That Property was rented to tenants. Roman paid all expenses of both properties out of the estate but is now paying the shortfall. The Will did not give the Respondents the right to live in either property. Apparently, Andrew had illegally rented out the upper floors of the Hyde Park Property, and the tenants of the Florence Property have repeatedly complained about Andrew and Jonathan’s misuse of the garage.
Roman wants to sell both properties. He brought this application for various orders, including vesting title in him and granting him possession as executor, declaring that he has the right to sell the properties and that no consents are required from anyone, and directing the Respondents to vacate the properties. In 2024 Roman had title to both properties transferred to him as executor. The Will gave Roman the authority to sell all of Nicholas’s estate that did not consist of money in such manner and upon such terms as he may decide.
3. Analysis and Judgment
Justice MD Faieta held that the fact that Roman had never applied for probate was not fatal to the application. As authority, he quoted the following passage from page 33 of the above text:
The question is often asked: Is it necessary to obtain probate [certificate of appointment of estate trustee] in every case? The answer is no. This is because executors derive their authority from the will rather than from the probate process. As a result, executors have the lawful authority to deal with estate property even if they do not obtain probate. Likewise, courts have jurisdiction over wills (and the executors appointed thereunder) regardless of whether they are submitted for probate. . . . The primary function served by probate [certificate of appointment of estate trustee] is therefore not to vest named executors with authority to deal with estate property but to authenticate to third parties that the persons presenting themselves as the executors are indeed the persons (more specifically, the only persons) with that authority.
Since the Applicant held the legal title to the properties, there was no need for a vesting order, an order granting possession, or an order declaring that the Applicant has authority to sell the properties since the Will gave him that authority.
However, his Honour granted an order directing the Respondents and any unauthorized tenants to vacate the Hyde Park Property and the Florence garage He also granted leave to the Applicant to issue a writ of possession of the Hyde Park Property. He required the Respondents to account for any rents they received and directed that the tenants should pay rent, if any, to the Applicant.
Although the Applicant claimed costs on a full indemnity basis, a substantial indemnity basis, or a partial indemnity basis, his Honour held that this was not a case for elevated costs and awarded him partial indemnity costs of $20,000, inclusive of HST and disbursements.
—
[1] 2024 ONSC 4213.
[2] Oosterhoff on Wills, 9th ed by Albert H Oosterhoff, C David Freedman, Mitchell McInnes, and Adam Parachin (Toronto: Thomson Reuters, 2021), §2.4.1, p 33).
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