Proof In Solemn Form: When Probate Is Not A Simple Over-The-Counter Court Application

In the usual course of estate administration, one of the preliminary steps is often obtaining a Certificate of Appointment of Estate Trustee with a Will (often referred to as “probate”). Generally, this is an administrative, over-the-counter process. The applicant files the original will, the prescribed application forms, any supporting materials required by the court, and pays the applicable Estate Administration Tax. If the application is in order, the court issues a Certificate of Appointment confirming the authority of the estate trustee named in the will.

Straightforward enough—but there are some exceptions to this process. A proof in solemn form application is one such exception where extra steps will be needed before a will is validated by the court.

What is "Proof in Solemn Form"?

Proving a will in solemn form requires the propounder of the will to establish, in open court and on notice to all persons with a financial interest in the estate, that:

• the will was duly executed;
• the testator possessed testamentary capacity; and
• the testator knew and approved of the contents of the will.

To prove a will in solemn form, an application needs to be brought under Rule 75.06 of the Ontario Rules of Civil Procedure. Such an application can be brought by an estate trustee or anyone who appears to have a financial interest in the estate and is seeking to have the court validate the will. Note that a discussion on the evidentiary threshold for an interested person to bring such an application is out of the scope of this blog. 

When "Proof in Solemn Form" may be Needed: A Holograph Will

In some circumstances, the court may require that a will be proven in solemn form before a Certificate of Appointment can be issued where there are questions concerning its validity, as in the case of Rezaee (Re), 2020 ONSC 7584.

In this case, the deceased, Mr. Rezaee, was an Iranian national who immigrated to Canada at age 21. He had no family in Canada. A few months before his death in August 2018, Mr. Rezaee attended a dinner hosted by his close friend, Mr. Naftchi. During the gathering, Mr. Rezaee wrote and signed a holograph will in Farsi on a piece of paper in the presence of the other guests.

Later that year, Mr. Naftchi located the holograph will, which when translated into English left all of Mr. Rezaee's "wealth and property" to Mr. Naftchi. Mr. Naftchi subsequently applied for a Certificate of Appointment of Estate Trustee with a Will.

Rather than granting the application administratively, the court directed that the holograph will be proven "in solemn form in open court." The court also required independent witnesses as to Mr. Rezaee's handwriting and signature, service of the application on the Public Guardian and Trustee, and notice of the application to Mr. Rezaee's next of kin and service on them (as part of this requirement, Mr. Naftchi was required to publish in a local newspaper and national newspaper, in Canada and Iran, that the application was before the court for adjudication and that the next of kin may have rights).

After considering the evidence, the court ultimately concluded that the holograph will had been proven in solemn form and was a valid will. 

When "Proof in Solemn Form" is Needed: Lost or Destroyed Will

A proof in solemn form application is necessary where the original will cannot be located or has been destroyed, as in the case of Gaynes v. Gaynes, 2025 ONSC 5638.

In this case, the deceased, Marlene, executed a will on June 23, 2010, with the assistance of a lawyer who retained the original will for safekeeping. Following Marlene’s death in 2022, the lawyer forwarded the original will to Marlene's husband who died later in that same year. When Marlene’s son attempted to locate the original of Marlene’s will, he was unable to do so and could only find a photocopy. He therefore commenced an application to prove the validity and contents of the lost will.

A central issue was whether Marlene’s son had rebutted the presumption that Marlene destroyed her will with the intention of revoking it. The evidence demonstrated that Marlene did not have an opportunity to destroy the will as she never had possession of the original will after she signed it. The original will had remained with her lawyer and was released only after her death. There was also no evidence that Marlene had executed a subsequent will.

The court was satisfied that Marlene did not revoke the will, and that the will executed on June 23, 2010 was a valid will.

Takeway

Proof in solemn form applications are often time-consuming and expensive and can be procedurally complex. Unlike a standard probate application, they may require extensive evidence, witness testimony, and court attendances before a Certificate of Appointment can be issued.

While not every proof in solemn form application can be prevented, thoughtful estate planning with professional advice and proper safe-keeping of the original will and recording of its release and ensuring there are copies made can go a long way toward minimizing the likelihood that a will's validity will need to be formally established before the court, or should it need to be that a copy of it can be produced and submitted to court.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.