Notice of Intention to Probate a Will

When you apply to court for probate of a will in British Columbia, you or your lawyer must give notice of your intent to apply to the beneficiaries of the will. You must also send a notice to anyone who would be entitled to a share of the estate if there were no valid will (an intestacy), and to anyone who may apply to vary the will pursuant to the Wills Variation Act. This is set out in s. 112 (1) of the Estate Administration Act, RSBC 1996, c. 122. You must send each of these people a copy of the will.

What happens if you are an executor, and you don’t know the whereabouts of someone who is entitled to notice? Perhaps you don’t even know the identity of those who would be entitled to a share if there were no valid will.

It is good practice for a lawyer to get information about anyone who will be entitled to notice when taking will instructions, even if the lawyer’s client does not intend to include them all in the will. Then, after the client’s death, if the executor does not know the identity of all of those entitled to notice, the lawyer has the necessary information in his or her file. This can be especially helpful if the client does not have immediate family, and perhaps his or her cousins will be entitled to notice because the cousins would receive a share if there were no valid will.

I recently had a case, where my client had no immediate family. He left home at a young age to joint the military. To his knowledge, he had no brothers or sisters. He did not know his next-of-kin. I prepared a statutory declaration for him setting out the circumstances, in which he declared that he did not know his next-of-kin.

Section 112 (3) of the Estate Administration Act gives the court registrar the authority to dispense with notice if the person “is dead or the person's whereabouts is unknown.”

After my client died, we filed my client's statutory declaration in court with an application to the court registrar for an order relieving the executor from the obligation to give notice to the next of kin. The registrar granted the order, and the court granted probate. Without this order, it would have been very difficult and costly to locate the next-of-kin, none of whom were entitled to anything under the will.