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Another Reason to Probate a Will

In some circumstances, it may be appropriate or advisable to probate a will (Application for a Certificate of Appointment of Estate Trustee with a Will) even if the assets of the estate do not require probate.

One such reason could be to start the clock ticking on the limitation period for any claims for dependant support. This issue is highlighted in a recent decision where an adult child brought a claim for support against the estate of his late father years after his father’s death.  His mother was the beneficiary of his father’s estate and had not probated the father’s wills.

In permitting the son’s claim despite the passage of several years, the court noted that the limitation period under section 61(1) the Succession Law Reform Act was six months from the grant of probate (as opposed to the general limitation period of two years).  Since probate had never been granted, the limitation period never began to run.

While hindsight is better than foresight as the saying goes, had the mother probated the father’s wills, presumably the son’s claims would have been statute barred after six months. Given the result in this case (a support order), it is important from any estate trustee to consider whether it would be advisable to probate a will even if the assets of the estate do not require that a grant of probate be obtained in order to distribute the estate.

Thanks for reading,

Jason