Thursday, January 15, 2009

Ancillary Grants in British Columbia

In my last post, I wrote about resealing grants of probate from other Canadian provinces and from a few other Commonwealth jurisdictions in cases where the deceased was ordinarily resident outside of British Columbia, but had assets in British Columbia.

You can only “reseal” a grant of probate if the original grant was made in a place to which the Probate Recognition Act applies.

What if the Probate Recognition Act does not apply? For example, if the deceased was a resident in the Oregon at death, the executor may probate the will in Oregon. The deceased may have owned land in British Columbia. The Land Title Office will not allow the executor to transfer the land into his or her name on the basis of a grant of probate made by an Oregon court. Nor will the executor be able to reseal the grant in British Columbia under the Probate Recognition Act.

Fortunately, there is provision under the British Columbia Supreme Court Rules for an ancillary grant. Rule 61 (48) [since I wrote this post, the rules have been amended, and it is now Rule 21-5 (59)] says:

If probate or administration has been granted by a court of competent jurisdiction outside British Columbia and the grant cannot be resealed under the provisions of the Probate Recognition Act,
(a) a grant of administration, limited to the estate of the deceased in British Columbia, may be made to the attorney of the personal representative appointed by the foreign court, or
(b) an ancillary grant of probate or administration may be made to the personal representative appointed by the foreign court.
Rule 61 (49) [now 21-5 (60)] requires the applicant for an ancillary grant to file a copy of the will certified by the foreign court that granted probate or letters of administration.

The procedure is otherwise similar to a probate application. The applicant must file an affidavit of notice, and as well as an affidavit exhibiting an inventory of the deceased’s assets, liabilities and distribution. (See my post on probate applications.)


Anonymous said...

In this case, once you file your disclosure statement, do you include the assets/land owned in the foreign jurisdiction? Or just the assets/land owned in B.C.?

Also, how do the new BCSC Rules affect this?

Stan Rule said...

I include all assets in the inventory including those outside of B.C.

Since reading your comment, I have amended the post to reference the new rules, which are as of December 2010, the same as the rules in effect when I wrote this post.

I expect the rules to be amended again when the new Wills, Estates, and Succession Act comes into effect.