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Probate and Privacy

When you die, the person who you have appointed as your estate trustee will have to file an application for a certificate of appointment  — commonly called “applying for probate” — and in that application they will have to divulge the value of your estate, and the individuals whom you have chosen as your beneificiaries.  That application will be filed with the court and as such the information contained in it will be publicly available for anyone to access.

In a recent case heard by the Ontario Superior Court of Justice,  the Toronto Star brought an application  to gain access to the probate files of Barry and Honey Sherman, a wealthy Toronto couple whose tragic murders have been the subject of much media attention.  The probate files had previously been sealed by the Court out of concern for the privacy and saftey of the individuals named in the Shermans’ wills.  The Toronto Star challenged that sealing order on the basis that it violated the “open court principle”, the purpose of which is to maintain the public’s confidence in the integrity of our justice system by ensuring that matters before the Court are dealt with openly and transparently.

In affirming and extending the existing sealing Order, Justice Dunphy held that the privacy interests of the individuals named in the Shermans’ wills outweighted the public interest in having access to the information in the Shermans’ probate files.  In doing so, Justice Dunphy noted that probate applications are primarily administrative proceedings, the purpose of which is to ensure that the estate pays the requisite amount of tax, and that the individuals named in the wills recieve proper notice of the proceedings. Nevertheless, it will be a very rare case where an estate trustee seeks and successfully obtains an order sealing a probate file.  The Shermans’ case is one where the combination of tragic circumstances, intense public scrutiny and saftey concerns justified the extraordinary rememdy of a sealing order.