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Notice to the Profession - Temporary Modification of Filing Requirements under Surrogate Rules in Respect of Application for Grants

Apr 14, 2020

Applications for grants of probate and administration require the execution and submission of documents to the Court.  Several of those documents, such as NC 1 and NC 2, require the original signature of the Applicant.  Surrogate Rule 16 requires the Applicant to mark the back of the will for identification.  NC 6.1, if applicable, requires a trustee to execute an acknowledgment.  Depending on the circumstances, other affidavits, such as NC 8, NC 9 and NC 11, may be required to be completed and filed.

The COVID – 19 pandemic creates challenges in effecting compliance with execution and filing requirements.  Until further notice, the Court is prepared to modify certain execution and filing requirements.

  1. Affidavits which must be filed may be completed in accordance with the Notice to the Profession and Public: Remote Commissioning of Affidavits for Use in Civil and Family Proceedings During the COVID-19 Pandemic.


  2. If there is an original will, it may (subject to paragraph 5 below) be retained by the Applicant’s counsel before whom the Applicant’s Affidavit is sworn.  A copy of the will should form an exhibit to the NC 2 sworn and marked by the Applicant or the NC 8 sworn by a witness to the will, in accordance with the protocol referred to in paragraph 1 above.


  3. NC 1 should be executed by the Applicant who, in accordance with the protocol referred to in paragraph 1 above, is linked by audio-visual means to the Applicant’s counsel such that counsel will see the Applicant execute NC 1. The Applicant may then scan NC 1, thus executed, to counsel for submission as part of the Application.  Counsel will place their signature on the scanned copy of NC 1.


  4. Similarly, the Applicant will mark a copy of the back of the will, endorsed as required by Surrogate Rule 16.  As with NC 1, that marking will take place in front of the Applicant’s counsel linked by audio-visual means such that counsel will see the Applicant mark the back of the will.   The copy of the back of the will thus marked will be scanned by the Applicant to their counsel.


  5. Applicant’s counsel will mark the back of the original will as required by Surrogate Rule 16. The original will, initialed as an Exhibit to NC 2 by the Applicant’s counsel in accordance with the protocol outlined in paragraph 1 above, and marked as required by Surrogate Rule 16 by the Applicant’s counsel, together with a copy of the will marked by the Applicant in accordance with paragraph 4 above, will be filed with the Application.


  6. NC 2 must, under the heading Special or Unusual Circumstances, explain why resort to the above procedures is considered necessary in light of COVID – 19 pandemic related issues.
In a letter from the Applicant’s counsel which accompanies the Application for a Grant, counsel must indicate that departures from usual execution and filing requirements are effected pursuant to this Notice to the Profession. Counsel must also confirm that they witnessed the Applicant execute NC 1 in the manner required by paragraph 3 above and the back of the copy of the Will as required by paragraph 4 above.