
Courts could use artificial intelligence (AI) to speed up probate and uncontested divorce applications, lawyers say. The software can be trained on publicly available cases to learn how to flag problematic applications to a judge. But that will be difficult to achieve until probate processes are fully digitized.
About 90% of the probate cases Michael von Keitz sees are uncontested, said the senior associate lawyer at O’Sullivan Estate Lawyers LLP in Toronto.
If all the required documents and evidence are submitted and a judge doesn’t flag it as problematic, regular and small probate applications are usually processed within 15 and five business days respectively, the Ontario Ministry of the Attorney General said in an email. But that hasn’t been typical of lawyers’ experience.
“It’s inconvenient for executors to wait for two to three months, depending on which courthouse you’re at, to get this probate certificate,” said Christopher Crisman-Cox, an estate and trust litigation lawyer at Miller Thomson LLP in Waterloo. And it can sometimes take much longer in large cities like Toronto.
Applying for a probate certificate is a routine process of filling in beneficiary information, estate value and attaching the will, Crisman-Cox said. An AI could train on publicly available court records to review probate applications and flag problematic ones to a judge for additional scrutiny.
Since the AI will only be processing information as opposed to generating information, and the output will be subject to judicial review, hallucinations won’t be a main concern, von Keitz said.
But provincial courthouses haven’t fully digitized the probate application process yet. “If you’re dealing with physical documents, it’s much harder to have the AI assist,” Crisman-Cox said.
The best way forward in Ontario is to allow electronic wills, von Keitz said. Currently, B.C. is the only jurisdiction in Canada that allows electronic wills. A digital document will be more portable; it can be seamlessly remitted to a court digitally.
“Physical documents can be lost. They can be placed into piles that aren’t seen for months,” said von Keitz.
Ontario committed $166 million over seven years to digitize its court system in 2021. The program will replace paper-based processes with an online platform including electronic filing, the Ontario Ministry of the Attorney General said.
However, the digitization project’s first phase, which will go live in July, and the court case search tool which launched in 2020, both exclude probate cases, according to the ministry’s 2023-24 court services division annual report.
“At this time, Ontario does not have any plans to propose legislative amendments with respect to digital wills,” the ministry said. “However, ministry officials responsible for wills and estates policy and legislation continue to monitor developments in other jurisdictions.”
Instead, probate forms were simplified, more staff were hired to process probate applications and an analytical tool was implemented to identify improvement opportunities, the annual report said.
Similarly, electronic death certificates and electronic payments to the court that can be held in escrow would also increase efficiency, von Keitz said. “I feel that it’s another efficiency that would be relatively straightforward to implement.”
Digitizing documents and training a new AI model is labour intensive. With many Ontario courts understaffed, it’s unlikely they can spare the staff to implement the software under current conditions, von Keitz said. He hopes the government can devote resources to modernize this judicial function.