Function of the Registrar in Probate Applications

In British Columbia, if you apply to probate a will, you can do so by filing the appropriate documentation, including the original will, in the court. The registry staff reviews the application. If the application complies with the court’s requirements, the Registrar grants the probate. It is usually not necessary for anyone to physically appear in court.

It is quite common for the Registrar to require further information before granting probate. I am told this happens most frequently when people try to do file for probate without the assistance of a lawyer. Clients have sometimes retained me out of frustration when their applications have been rejected because of deficiencies. But the registry staff does find deficiencies from time to time in applications prepared by even experienced estate lawyers.

What is the proper role of the Registrar in deciding whether to grant probate? On what grounds may the Registrar require further information?

This was considered in a recent Supreme Court of British Columbia decision, Bray Estate, 2008 BCSC 205.

In Bray Estate, the executor asked to have a probate application referred to a judge after the Registrar refused to grant probate. The executor argued that the Registrar wrongly refused to grant probate. Mr. Justice Groberman considered two previous decisions, Re Bradford Estate (1990), 40 E.T.R. 50 and Re Nelson Estate (1999), 31 E.T.R. (2d) 230, and summarized the role of the Registrar at paragraph 14 as follows:

In summary, a registrar is entitled to reject an application under Rule 61(3) or require further information where the application is incomplete or ambiguous, where it contains patent errors, or where the information provided is, on its face, so curious as to demand further explanation. On the other hand, a registrar is not entitled to set her or his own requirements for an application, in effect, adding additional pre-requisites to the granting of probate beyond those statutorily authorized. In short, while the Registrar's function was not purely clerical, neither was it legislative.

Mr. Justice Groberman then went through the specific comments made by the Registrar in this case. He found that some were simply helpful comments; others were deficiencies of a minor nature that might not be grounds for rejection.

One point is likely to be of interest to estate lawyers in British Columbia. Mr Justice Groberman found that the Registrar does not have authority to require that the applicant state in the disclosure document setting out the assets, liabilities and distribution the method by which the applicant has estimated the fair market value of real estate. He wrote at paragraph 20-22:

[20] The prescribed form, Form 69, merely requires a listing of each real property interest and the value. It does not suggest that the method of valuation
need be provided. While it may be that a registrar is entitled to make further inquiries where the value listed is completely out of keeping with the nature of the asset listed – for example, if a fee simple were valued at $100 – I see no basis on which a registrar is entitled, as a matter of routine, to simply add to the requirements of the form prescribed by the Rules by requiring the applicant to set out the basis upon which the valuation has been reached. The form does not provide for the applicant to set out the method by which he or she arrives at a value, and a registrar has no authority to embark upon a general investigation of that issue in the absence of something on the form that creates confusion.

[21] While I acknowledge that the language of Appendix C has changed since Re Bradford and requires a payment based on gross value of the estate rather than “on the values deposed to”, I see nothing in the Appendix or other enactment that gives a registrar powers to enter upon an inquiry where the value deposed to is, in broad terms, in keeping with the general character of the property listed. I note, as well, that the Probate Fee Act, S.B.C. 1999, c. 4, defines the expression "value of the estate" as meaning “the gross value, as deposed to in a Statement of Assets, Liabilities and Distribution exhibited to the affidavit leading to a grant ….” This language is very similar to the language that Master Kirkpatrick considered in Re Bradford.

[22] The Registrar did not, in her reasons for rejection, suggest that the amount listed as "value at death" was out of keeping with the nature of the asset, nor do I have a basis on which I could make a finding to that effect. In the result, the Registrar's demand that the method of valuation be disclosed amounted to a supplementing of the statutory requirements and was beyond the Registrar's jurisdiction. I find that the applicant was not required to set out the method of valuation.

But in Bray Estate, the proposed distribution did not comply with the clear terms of the will. Accordingly, Mr. Justice Groberman held that the Registrar was right to require correcting documentation.