Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: IN THE ESTATE OF DAVID COLE CONLY, Deceased
BEFORE: Justice I.F. Leach
COUNSEL: Susan Fincher-Stoll, for the applicant
HEARD: In writing.
Endorsement
1Before me is an application by David Craig Conly and Leslie Jane Day, parents of the deceased, David Cole Conly, (who died suddenly on April 14, 2026), for a certificate appointing them as estate trustees of the deceased’s estate; an estate with assets totalling just $76,000.00 in property, ($71,500.00 in real estate and $4,500.00 in personal property), in respect of which the deceased apparently left no will.
2In their application material, the deceased’s parents also have indicated that they are “seeking an order to dispense with the bond requirement”, and have submitted a draft order in that regard, which is why the London estates clerks felt apparently obliged to direct this to a judge of the court to be addressed as a basket application.
3Having reviewed the application material, I am satisfied that the applicable requirements of Rule 74.1 of the Rules of Civil Procedure and the Estates Act, R.S.O. 1990, c.E.21, have been met, and the certificate should issue. Without limiting the generality of the foregoing:
a. the deceased never married and had no children;
b. the sole beneficiaries of the estate are the deceased’s parents, by virtue of s.47(3) of the Succession Law Reform Act, R.S.O. 1990, c.S.26; and
c. both parents have executed written “Renunciation and Consent” forms, consenting to their joint appointment as estate trustees without a will – as well as “an order dispensing with the filing of an estate administration bond” by the applicants.
4Again, the application apparently was directed to a judge as a “basket application” in writing because of the request therein for a requested order to formally “dispense with the bond requirement”.
5However, as I now have had occasion to note in numerous reported decisions1, and in a greater number of additional unreported endorsements, such a request is unnecessary in such circumstances.
6The normally applicable requirement for posting of an administrative bond by applicants for a certificate of appointment as estate trustee without a will stems from section 35 of the Estates Act, R.S.O. 1990, c.E.21, which reads as follows:
Bonds
- Except where otherwise provided by law, every person to whom a grant of administration, including administration with the will annexed, is committed shall give a bond to the judge of the court by which the grant is made, to enure for the benefit of the Accountant of the Superior Court of Justice, with a surety or sureties as may be required by the judge, conditioned for the due collecting, getting in, administering and accounting for the property of the deceased, and the bond shall be in the form prescribed by the rules of court, and in cases not provided for by the rules, the bond shall be in such form as the judge by special order may direct. [Emphasis added.]
7Since passage of the Smarter and Stronger Justice Act, 2020, S.O. 2020, c.11, which received royal assent on July 7, 2020, section 36 of the Estates Act, supra, has been amended to read as follows:
When security not required
- (1) It is not necessary for the Government of Ontario or any ministry thereof or any Provincial commission or board created under any Act of the Legislature to give any security for the due performance of its duty as executor, administrator, trustee, committee, or in any other office to which it may be appointed by order of the court or under any Act.
Idem
(2) A bond shall not be required where the administration on an intestacy is granted to the surviving spouse of the deceased and where,
(a) the net value of the estate as computed for the purposes of section 45 of the Succession Law Reform Act does not exceed the preferential share prescribed under subsection 45 (6) of that Act; and
(b) there is filed with the application for administration an affidavit setting forth the debts of the estate.
Same
(3) Subject to section 6, a bond shall not be required in respect of a small estate, unless,
(a) a beneficiary of the estate is a minor; or
(b) a beneficiary of the estate is incapable within the meaning of section 6 of the Substitute Decisions Act, 1992 in respect of an issue in the proceeding, whether or not the person has a guardian.
Same
(4) Subsection (3) does not affect the operation of subsection (2).
Subsequently discovered property
(5) Subsection (3) ceases to apply if, following the discovery of property belonging to the deceased in the circumstances described in subsection 32 (2), the estate ceases to be a small estate.
[Emphasis added.]
8Pursuant to the definitions set forth in section 1 of the Estates Act, supra, the term “small estate”, as used in the Act, is defined as “an estate that does not exceed the amount prescribed by regulations made under s.1(2) of the Act, which permits the Lieutenant Governor in Council to “make regulations prescribing an amount for the purposes of the definition of ‘small estate’” in subsection 1(1) of the legislation.
9Pursuant to section 1 of O.Reg.110/21 made under the Estates Act, supra, “For the purposes of the definition of ‘small estate’ in section 1 of the Act, the prescribed amount is $150,000”.
10As noted above, in the case before me, the total assets of the deceased’s estate amount to $76,000.00 in combined real and personal property. It accordingly falls within the definition of a “small estate” for purposes of the Estates Act, supra. Moreover:
a. the applicants requesting the certificate of appointment as estate trustees without a will both reside here in Ontario, such that section 6 of the Estates Act, supra, has no application;
b. as confirmed in the filed application material, no beneficiary of the estate is a minor; and
c. as also confirmed in the filed application material, no beneficiary of the estate is a mentally incapable adult, and thereby incapable within the meaning of section 6 of the Substitute Decisions Act, 1992, in respect of any issue in this proceeding.
11It follows that, pursuant to the provisions of s.36(3) of the Estates Act, supra, “a bond shall not be required in respect of [this] small estate”. The opening proviso to section 35 of the Estates Act, supra, exempting situations from that section’s ambit “where otherwise provided by law”, applies to this situation.
12There accordingly is no need for a formal order dispensing with a bond requirement that does not exist in the circumstances, and in my view the court should not make unnecessary orders.
13In relation to the present case, I therefore decline to make the requested order because it is unnecessary for the reasons outlined above.
14The application material otherwise is in order, and the requested certificate should issue.
15On a final note:
a. Almost six years have passed since passage of legislation making it clear that there is no longer any administration bond requirement in such circumstances, and that estate trustee applicants, their counsel, court staff and the judiciary accordingly should no longer be devoting time, expense and resources to requests for court orders dispensing with a bond requirement that no longer exists in such circumstances.
b. Such requests for administration bond dispensation orders, in such circumstances, nevertheless continue to be filed with the court on a regular basis. The result is needless legal expense for represented applicants, delayed processing of such applications, and therefore unnecessary delay in the administration of such estates. Moreover, as the court’s estate clerks are obliged to direct such requests to the judiciary, and the judiciary is obliged to address them, such requests are inherently wasteful of the court’s limited and increasingly overburdened resources.
c. It is well past time for such requests, advanced in such circumstances, to stop. Lawyers practising in this area need to familiarize themselves with the changed legislation, and instruct those helping with the preparation and filing of estate trustee application material accordingly.
“Justice I.F. Leach”
Justice I.F. Leach
Date: May 25, 2026
Footnotes
- See, for example: In the Estate of Sylvia Judy Nizzero, deceased, 2023 ONSC 117; In the Estate of Endre Gyorgy Kocsis, deceased, 2023 ONSC 627; In the Estate of Robin Bernard Dauphinais, deceased, 2023 ONSC 628; and In the Estate of Troy Deveron Haggitt, 2023 ONSC 4411.