I think the Sherman Estate makes a very valid point in this SCC appeal. It doesn’t make a lot of sense to me that in Canada, only probated Wills become public record and non-probated Wills, Trusts or other financial assets naming a beneficiary are confidential.
In the Sherman case, if the contents of the Probated File are released by the media I can guess the headlines - So-and-so was disinherited! But without access to the full Estate file including any non-probated estate transfers, that’s not an accurate conclusion. However I suspect KD isn’t concerned about that. JMO
BBM
https://www.scc-csc.ca/WebDocuments...man-and-the-Trustees-of-the-Estate-et-al..pdf
THE ESTATE OF BERNARD SHERMAN AND THE TRUSTEES OF THE ESTATE, and THE ESTATE OF HONEY SHERMAN AND THE TRUSTEES OF THE ESTATE
- and –
KEVIN DONOVAN
“....
58. As recognized by the Application Judge, “[t]here is no requirement to seek probate of a will in Ontario and, when sought, probate is not normally a litigious matter. This single fact sets court files in estate matters quite apart from the great bulk of court proceedings.” (*71) As a practical matter, probate is necessary in some circumstances, such that individuals are not able to choose to safeguard their privacy by avoiding the probate process entirely. As a practical matter, probate is necessary in some circumstances, such that individuals are not able to choose to safeguard their privacy by avoiding the probate process entirely. For instance, in Ontario, probate is generally required in order to transfer real property registered in the Land Titles system. (*72) Third parties such as banks often require probate in order to benefit from a statutory protection against potential liability (*73).
59. Moreover, “[t]he progress of estates files is fundamentally administrative in nature in most cases” (*74). A probate application generally requires only a will (to the extent one has been
identified), proof of death, notice to estate beneficiaries, and a statement of the value of the assets dealt with by the will. Estate administration tax is then paid upon filing the application, and a Certificate of Appointment of Estate Trustee will typically be issued (*75).
60. Finally, the relevance of probate in our time is limited given that most property passes on death outside of the probate process. As noted by the Application Judge: (i) the use of dual wills (i.e. both a “primary will” and “secondary will”) enables some assets to be dealt with privately by one will (that is not probated), and other assets for which probate is likely needed to be dealt with by another probated will; and (ii) joint tenancy and inter vivos trusts enable assets to pass outside the probate process altogether (*76). In addition, much of the wealth in modern Canada passes under life insurance policies and registered plans (such as RRSPs, RRIFs and TSFAs), in accordance with written designations that can be completely outside the probate process. Most tellingly, these designations are provided for by legislation, indicating a public policy in favour of privacy and lack of any public interest in disclosure of these matters (*77)......”