All About Estates
By Ruth Paul, April 29th, 2025
Probate is the process by which the validity of a Will is determined. When executors named in a Will apply for probate, they must establish that:
- The testator satisfied the statutory age requirement to make a Will;
- The Will followed statutory requirements and had not been revoked;
- The testator knew and understood the contents;
- The Will was not affected by mistake; and
- The testator had testamentary capacity.
In probate matters, the Court’s role is inquisitorial, in that it must ascertain and pronounce which documents constitute a testator’s last Will. Probate binds parties in the proceedings and unless it is set aside, it operates in rem and may affect the rights of third parties.
A Certificate of Appointment of Estate Trustee with a Will (“CAETW”) is granted through probate. It acts as confirmation from the Court that a document is the testator’s authentic final Will, and an executor may act on behalf of the estate in accordance with the terms of the Will.
Granting of probate acts as a form of finality on certain issues, such as the legitimacy of a Will. Before accepting or not contesting a probate application, beneficiaries should be mindful that their silence may bar their ability to seek future relief on such matters.
Ruth Paul, Articling Student at de VRIES LITIGATION LLP
