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Estates - 'Courts of Probate'. Kentros v. Kentros
In Kentros v. Kentros (Ont CA, 2026) the Ontario Court of Appeal dismissed an estates appeal, here brought against an order that rectified a will for lack of a 'remainderman clause'.
Here the court considers the dual roles of 'courts of probate' and 'courts of construction':The nature of the application court’s role
[42] Before turning to the grounds of appeal and cross-appeal, it is important to underline that the application judge was sitting as a court of construction, as opposed to a probate court. This is an important point, as it informs both what the application judge could do and what evidence he could rely on for the purpose of interpreting Effie’s 2017 will.
[43] In Ontario, probate is effected through the issuance of a certificate of estate trustee: Elizabeth Casey Cooke Family Trust v. Dioguardi, 2026 ONCA 85, at para. 15; Neuberger Estate v. York, 2016 ONCA 191, 129 OR (3d) 721, at para. 69, leave to appeal refused, [2016] S.C.C.A. No. 207. Although the Ontario Superior Court of Justice now sits as both the court of probate and the court of construction, these two jurisdictions are distinct: they have separate origins, exercise different functions and are subject to different evidentiary rules: Neuberger Estate, at para. 67, citing Otis v. Otis (2004), 7 E.T.R. (3d) 221 (Ont. S.C.), at para. 22; Panda Estate (Re), 2018 ONSC 6734, 42 E.T.R. (4th) 139, at para. 17; Nordlander v. Nordlander Estate, [1998] O.J. No. 4039 (Gen. Div.), at paras. 17-22; see also, Ali Estate (Re), 2011 BCSC 537, 69 E.T.R. (3d) 203, at paras. 21-24, discussing the Law Reform Commission of British Columbia’s Report on Interpretation of Wills, LRC 58 (Victoria, 1982) at p. 1.
[44] Probate is “the court procedure by which a will is proved to be valid or invalid”, it also refers to “the court order certifying that particular writings constitute a deceased’s will and that those persons named as estate trustees have the authority to act in relation to the testator’s estate”: Neuberger Estate, at para. 66. The court of construction interprets the contents of a will as probated: Albert H. Oosterhoff et al., Oosterhoff on Wills, 9th ed. (Toronto: Thomson Reuters, 2021), at pp. 480-81.
[45] Justice Brown succinctly summarized the two distinct questions that a probate court and a court of construction must answer in sequence: “(i) [w]hat document constitutes the will of which the testatrix knew and approved? (ii) [w]hat does the language of the will mean?”: Balaz Estate v. Balaz, [2009] O.J. No. 1573 (Ont. S.C.), para. 10.
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