Grant Applications - Probate and Administration
This portion of the module deals with the procedure and documents required for a grant of probate or administration to residents of British Columbia. For procedures for grants to non-residents, refer to the British Columbia Probate and Estate Administration Practice Manual (Vancouver: CLE). Much of the following information applies to applications for administration, but some procedural differences are highlighted.
The Supreme Court of British Columbia has exclusive jurisdiction to grant probate under its general jurisdiction in all civil and criminal matters as stated in the Supreme Court Act, and by definition of the court in WESA. Its jurisdiction extends to granting probate and administration where the deceased was domiciled in British Columbia or had assets in British Columbia at the date of death (s. 129(1) of WESA). An exception to this exclusive jurisdiction arises where the deceased was a status Indian. In that case, the deceased's estate must be handled pursuant to the “Descent of Property” provisions of the Indian Act.
Part 25 of the Supreme Court Civil Rules sets out the procedure for probate matters before the court. Division 2 of Part 6 of the WESA sets out additional provisions to the Rules.
Where the Rules and practice of the court do not give assistance on a procedural matter, you may refer to Tristram and Coote's Probate Practice, 27th ed., 1989, and MacDonnell, Sheard and Hull on Probate Practice, 3rd ed., Toronto: Carswell, 1981.
Recommended further reading to complete this module:
Aboriginal Estates: Policies and Procedures of INAC, BC Region 2007, Aboriginal Practice Points, The Continuing Legal Education Society of British Columbia). This paper summarizes the key points relating to estates of First Nations persons. The paper reviews the practice where the Minister of Indian and Northern Affairs Canada (INAC) has jurisdiction over the estate of a registered Indian who was ordinarily resident on a reserve at the time of death.
Wills for First Nations Persons (2007, Aboriginal Practice Points, The Continuing Legal Education Society of BC). Section III.B summarizes the intestacy provisions under the Indian Act.
In most cases, probate is first applied for in the jurisdiction where the deceased was domiciled. Although the deceased's place of residence is a good indicator of domicile, it alone is not sufficient to create domicile.
Choice is also a factor in determining domicile. If the deceased chose to reside in a new jurisdiction with the intention to reside permanently or indefinitely in that new jurisdiction, the will may first have to be probated in the new jurisdiction. For example, a will-maker may have retired and moved from British Columbia to a retirement community in the United States, Mexico, or Costa Rica. If the will-maker returns to British Columbia for medical treatment and dies while in BC, you will have to decide on the deceased’s domicile, that is, whether the move out of Canada was an abandonment of British Columbia as the place of domicile. If so, the estate will have to be probated first in the jurisdiction of domicile and "resealed" afterwards in British Columbia, so that the deceased's local assets can be dealt with.
C. Making the Application
An application for probate or administration may be made at any registry of the Supreme Court. Although s. 15 of the Estate Administration Act has been repealed, any subsequent grant in the same estate, such as a change of executor, should be made in the same registry as the original grant.
A notice of dispute may be filed against the granting of probate or administration under Rule 25-10. The filing of a notice of dispute replaces the old procedure for filing caveats, and has the effect of putting a halt on the application process for up to one year. A caveat filed under the old rules becomes a notice of dispute pursuant to the transition provisions. The notice of dispute may be removed either by consent of the party filing it or by court order. A person must not file more than one notice of dispute, but may apply to the court to have it renewed.
Recommended further reading to complete this module:
BC Probate and Estate Administration Practice Manual (looseleaf, The Continuing Legal Education Society of British Columbia). At §18.3 to §18.14, there is a discussion on notices of dispute.
It is not mandatory to probate the estate at any particular time; however, pursuant to Rule 25-2(1), 21 days must pass after giving notice before an application for probate can be submitted. This provides any interested parties an opportunity to oppose the application by filing a notice of dispute.
D. Documents Required for an Estate Grant
Rule 25-3, in particular sub-rules (1)-(13), sets out the new procedures for an application for probate or administration. The new probate rules apply to all applications for probate and administration. Rule 25-16 deems actions and applications brought under the previous Rules to be brought or continued under the new Part 25.
WESA defines "representation grants" as including grants of probate, administration, resealing, or ancillary grants of probate or administration. The Rules define "Estate Grants" as including grants of probate, administration, and ancillary grants, but not grants of resealing.
(i) Notice of Proposed Application in Relation to Estate
The personal representative must determine who at law is required to receive notice. Ensure the addresses are residential address and not merely post boxes or rural route addresses. The addresses must also be consistent with the addresses listed in the distribution section of the disclosure statement that is exhibited to the executor’s affidavit. If not, the registry may reject the application for factual inconsistency. Section 121 of WESA (or Section 112 of the Estate Administration Act, which applies if the deceased died prior to March 31, 2014), requires that notice, in accordance with Rule 25-2, of an intended application for probate be mailed or delivered to each person, other than the applicant, who to the best of the applicant's knowledge is:
- a beneficiary of the estate under the will; or
- entitled on an intestacy, or partial intestacy.
Note that s. 25-2 (6) of the new Supreme Court Civil Rules permits electronic notice provided that the recipients acknowledge receipt of notice.
When sending the Notice (in Form P1), all testamentary documents (that is, the will and codicil) must be included with the Notice. A sample notice is available on the table of contents page for this module.
If any persons who are entitled to notice cannot be found, a summary application may be made to dispense with the notice requirement for that person. If a beneficiary is an infant, the notice must be given both to the lawful parent or guardian and also to the Public Guardian and Trustee of British Columbia (Rule 25-2(8)). If the beneficiary has a mental disorder and there is a committee appointed, notice must go to the committee and to the Public Guardian and Trustee (Rule 25-2(10) and (11)).
Whenever notice is required to be given to the Public Guardian and Trustee, Rule 25-2(13) requires that the notice contain a list of the names and addresses of all beneficiaries along with all documents filed with the court in respect of the application. Usually you will be sending the notice to the Public Guardian and Trustee prior to filing the application at court because, before accepting your application, the registry requires proof that you gave such notice. A review fee must accompany the notice, and is payable to the Public Guardian and Trustee of British Columbia by the applicant. In 2014, the fee was $300, plus taxes.
The registry requires that your client swear that notice was sent to the Public Guardian and Trustee. It does not require that the Public Guardian and Trustee has acknowledged receipt or approved the application.
(ii) Submission for Estate Grant
The Submission for Estate Grant (Form P2) sets out what is requested from the registry and what material is being filed in support of the application. After delivering Notice, the documents to be filed with the Submission for Estate Grant include:
(a) Certificate of Wills Notice search
This certificate, obtained from the Director of Vital Statistics, must include all the names used by the deceased, including those in which the deceased held real and personal property. The Certificate of Wills Notice Search must be filed, even if the search was negative. Both pages of the search form must be filed with the application. Keep photocopies for your own file.
(b) Affidavit(s) of Delivery
Affidavit(s) of Delivery in Form P9 should be sworn by each person who attended to delivery of the Notice.
(c) Original will, codicil, and other documents
Sometimes other documents such as lists or directions for gifting particular personal items are included by reference into the will or codicil. If there is such a reference to another document, this must be included along with each of the original testamentary documents. Do not staple these documents to the affidavit. You should affix them with a paper clip or leave them loose.
Also, do not remove staples from the original documents for photocopying or for any other purpose. If you remove staples you will be required to file an additional affidavit with your client's application explaining why and when the removal occurred.
For example, if you are presented with an original will or codicil where the staples have been removed and the executor found the original will this way, you will have to address this by an additional affidavit. The affidavit must state that the will was found in this condition and, if possible, compare it to a copy of the will obtained when it was executed. The purpose is to show that no changes were made to the will.
(d) Affidavit of applicant
The Affidavit of the applicant must be made in Form P3, P4, P5, P6, or P7, depending on the type of estate grant applied for. If there is a will and there are no issues, the applicant may use the short form affidavit in Form P3. If there are issues with the will which require further explanation (such as specifics regarding execution or the attestation clause), the applicant may use the long form affidavit in Form P4, which is intended to replace to requirement of supplemental affidavits that might otherwise be required.
The affidavits require the applicants to swear that they believe the original will and codicil exhibited to the affidavit are the original last will and codicil, and that they have read the submission for estate grant and other documents referred to and believe them to be correct and complete. If there are no other wills shown by the Wills Notice search, no further proof is required by the registrar that the executor has made further searches for any later wills (see Rule 25-3(6)(b)).
(e) Affidavit of assets and liabilities
The Affidavit of Assets and Liabilities is commonly known as the disclosure statement and must be completed in Form P10. If applicants have not obtained all the required information, they may prepare and file an Authorization to Obtain Estate Information in Form P18. An example of the statement of assets, liabilities, and distribution is available on the table of contents page for this module.
Pursuant to s. 122 of WESA (or s. 111 of the Estate Aministration Act) the disclosure statement must disclose all assets and liabilities of the deceased that pass to the deceased's personal representative on the deceased's death, irrespective of their nature, location and value.
- all interests in real estate including beneficial interests; and
- all personal property including:
- all tangible assets such as vehicles, boats, furniture, antiques, jewellery and personal effects, and
- all intangible assets such as bank accounts, investments, company shares, RRSPs and RIFs (where the estate is the beneficiary).
Assets that do not pass to the personal representative do not need to be shown on the disclosure statement.
You do not need to show on the disclosure statement assets that do not pass to the personal representative. Examples are: assets with designated beneficiaries other than the estate like RRSPs, RIFs and insurance policies, as well as real estate held in joint tenancy, joint bank accounts, or any other property or asset where the interest passes to the joint tenant on death by operation of the right of survivorship (note one significant change under WESA is that applicants can file an affidavit of assets and liabilities of the estate after they have filed the rest of their application documents).
(f) Additional or supplementary documents
Other documents which must be filed with the Submission may include:
- an Affidavit in Form P8 if there are two or more applicants;
- an Affidavit of Translator in Form P12;
- an Affidavit of Interlineation, Erasure, Obliteration or Other Alteration in Form P16; or
- Notice of Renunciation in Form P17.
Recommended further reading to complete this module:
BC Probate and Estate Administration Practice Manual (looseleaf, The Continuing Legal Education Society of British Columbia). Discussions in this section refer to applications for proof in common form. See §18.52 to §18.71 for a discussion of situations in which it is advisable to seek proof in solemn form, where the validity of a will has to be proved in open court before a judge. This excerpt touches on the differences between proceeding by petition and proceeding by notice of civil claim in seeking proof in solemn form.
E. Registry Procedures
The procedure for probate is:
- file the application;
- pay the action fee;
- wait for a notice of approval by the registry; or
- wait for a notice of rejection and re-submit.
In the Vancouver, Victoria and New Westminster registries, applications for most grants of probate and administration are done by desk order (without a court hearing), if the registrar deems that the filed documents are in order. The procedure is to file the application material and pay the Supreme Court action fee of $200, wait for approval (up to 8 weeks in some registries), followed by either notice of rejection or notice of approval by the registry. If accepted, you will be advised of the probate fee payable before the grant will be issued. If rejected, you will be advised of any necessary corrections or further information that is required before re-submission.
Sometimes the forms used for notice of rejections can be vague as to what the registrar will accept in form or substance for the re-submission. You may need the registry staff to help you correct the problem.
A desk order for letters of administration (where the deceased died intestate) is available on the table of contents page for this module. A desk order will also be required where there is a partial intestacy.
When the application has been vetted and approved, it is typically sent up to a master or judge who signs a list of approved applications. The signed list becomes the order approving the grants. The registrar then prepares and executes the grant. In other registries, the registrar approves the application and both the file and grant are submitted to the judge or master for signature.
F. Probate Fees
If the value of the estate is less than $25,000, there are currently (2014) no probate fees payable to the registry. For estates with assets located within British Columbia having gross values of $25,000 or greater, a formula is set out in the Supreme Court Civil Rules, Appendix C - Fees (Note that the coming into force of WESA and the new Supreme Court Civil Rules on March 31, 2014 has had virtually no impact on probate fees and filing fees. A rough rule of thumb in estimating probate fees is 1.4% of the gross asset value.
Before making the application, you should determine where the funds to pay the probate fee will come from. Banks, investment companies and other financial institutions will normally release funds from the deceased’s account to pay the probate fees. This is usually accomplished by sending a copy of the approved probate fee from the registry along with a request for a draft, payable to the Minister of Finance. If the bank will not release the funds, the applicant or a beneficiary will have to lend money to the estate to enable the grant to proceed.
For the purpose of calculating the probate fee, the registry now includes all intangible assets located outside of British Columbia (pursuant to the Probate Fee Act). This is a change from the pre-2004 situation where intangible assets were not included, such as securities that did not have issued certificates. Tangible property located outside of British Columbia is still excluded from calculation for probate fee purposes. At this time, if the deceased was ordinarily resident in British Columbia immediately before the date of death, all of the deceased's assets with the exception of "real" and "tangible personal property" physically located outside of BC are subject to probate fees. This includes "intangible" assets.
Unfortunately, this may lead to probate fees being paid twice on the same intangible assets in two jurisdictions when probate is applied for in the other jurisdiction.
If the deceased was a status Indian under the Indian Act, probate fees are not charged for assets located on a reserve.
G. Other Special Grants
Administration with will annexed
Where there is a will but the executor is deceased, unable or unwilling to act, the court may appoint an administrator with will annexed (see s. 131 of WESA, which sets out the priority in which certain persons may be appointed, or ss. 6, 7 and 12 of the Estate Administration Act where it applies).
Administration Ad Litem
Section 150 of WESA allows a person to commence or continue an action or proceeding against a person whether or not a personal representative has been appointed. Under s. 9 of the Estate Administration Act, during an action or proceeding, if it appears to the court that a deceased person has an interest in the matter in question but has no personal representative, the court may appoint an administrator ad litem for the purposes of representing the estate.
Where a person dies leaving a will which does not dispose of all of their estate, s. 133 of WESA operates so that the grant of probate or administration with will annexed operates as a grant of the part of the estate not disposed of by the will.
There are also special or limited administration appointments which may be made in special circumstances, pursuant to s. 132 of WESA. These may include:
- Administration Ad Colligenda Bona: where delay in the appointment of an administrator requires someone to step up to be appointed on a limited basis to deal with the assets and protect the estate. The court may appoint an Administrator Ad Colligenda Bona, conferring whatever powers are deemed to be necessary in the circumstances.
- Administration Pendente Lite: where there is a challenge to a will or a revocation of a grant of probate, the court may appoint an Administrator Pendente Lite to deal with the estate assets while the challenge is pending. (See s. 103 of WESA)
- Administration de Bonis Non: where the appointed administrator dies leaving part of the estate un-administered, the court may grant a new personal representative the powers necessary to complete the administration.
- Special administration when personal representative is out of jurisdiction: Where the deceased died prior to March 31, 2014, pursuant to s. 11 of the Estate Administraion Act, if an executor or administrator resides outside of the province after the expiration of 12 calendar months from the date of the testator’s death, a creditor, next of kin or legatee may apply and the court may grant the applicant special administration of the estate on terms satisfactory to the court if there is delay caused by the absence. This provision has not been carried over in WESA.
Recommended further reading to complete this module:
Types of Grants Available ( 2009, Wills & Estates for Legal Support Staff: Advanced Issues, The Continuing Legal Education Society of British Columbia). Sections VI, VII, and VIII describe some of the special or limited administration grants, such as administration de bonis non, administration ad colligenda bona, and administration pendente lite.
I. Posting Security
Under s. 128 of WESA, unless the court otherwise orders, or a minor or mentally incapable person without a nominee has an interest in the estate, no bond or other security will be required. Sections 16, 17 and 18 of the Estate Administration Act, where applicable, require the administrator to post a bond unless this is waived by the parties giving consent to the applicant or dispensed with by the court.
Applications regarding security may be made according to Rule 25-14(1)(j)-(l).
If the person who is entitled to a portion of the estate has a mental disorder or is an infant, the Public Guardian and Trustee will file a letter with recommendations as to the amount of the bond and any other requirements. The court is not bound by the recommendations, but usually incorporates them into the order granting administration.
Bonds can be obtained through bonding companies, and arrangements can be made through an insurance broker. The bonds typically carry an annual charge and a minimum fee is payable in advance. The fee is charged against the estate, so if your client pays in advance for the bond, the estate can reimburse.
J. Other Applications
(i) Court rectification and construction of wills
The Supreme Court has jurisdiction to rectify a will prior to granting probate. The court also has jurisdiction to interpret (“construe”) the will after granting probate. Under WESA, the court's rectification power is expanded to the construction stage. WESA has expanded the court's ability to rectify wills so that they carry out the will-maker’s intentions because of an accidental slip, misunderstanding of the will-maker’s instructions, or failure to carry out the will-maker’s instructions. The application for rectification of the will must be made no later than 180 days from the date of the representation grant unless the court grants leave to apply after that time (s.59 of WESA).
If the will requires additional words to make its intention clear, you must apply to have the will interpreted or construed.
When rectifying a will, the court may delete words but it cannot add words. If the will requires additional words to make its intention clear, you must apply to have the will interpreted or construed. The process of construing a will involves ascertaining the will-maker’s intent when that intent is not clear on the face of the will.
For more details and procedures concerning these two applications, see Chapter 18 of the British Columbia Probate and Estate Administration Practice Manual and Chapter 13 of the Wills, Estates and Succession Act Transition Guide.
(ii) Advice and directions
Where issues arise in the course of administering an estate which are not related to construction or rectification, s. 86 of the Trustee Act and Rule 2-1(2) of the Supreme Court Civil Rules provide a remedy to the executor to seek directions and advice from the court.
(iii) Dispute resolution
Executors must act unanimously. Majority does not rule when there are multiple executors unless there is an express clause to that effect in the will. The court will only intervene on application when there is a true deadlock. However, the court will only act to compel the execution of the trusts and not to substitute its discretion in place of the executors or trustees. If you are faced with a deadlock, you should thoroughly research the case law on the court’s jurisdiction before applying to the court.
A trustee may be removed by the court on application pursuant to s. 30 of the Estate Administration Act when:
- the continued administration of the trust has become impossible;
- the executor’s or trustee’s duties and personal interests conflict; or
- the trustee’s conduct has endangered the estate assets.
Bankruptcy, criminal conviction, and changing residence outside of the jurisdiction are also reasons for removing an executor.