Sunday, June 06, 2010

Consultation Paper on New Probate Rules

The British Columbia Law Institute has published its "Consultation Paper on New Probate Rules," which was prepared by the Probate Rules Reform Project Committee.

The paper includes draft new rules.

One proposed change is to eliminate the division in the Rules between "Contentious" and "Non-contentious" business. (I have always found it strange that when you want to prevent probate to contest a will, you look to Rule 61, which governs non-contentious matters to file a caveat.)

The other major recommendations are set out in the Executive Summary as follows:

The proposed rules in Part Two are intended to accommodate a system in which a single court file for the estate would be opened when the first filing (typically an application for a common form grant) is made. Contested matters that currently must be pursued in separate actions with different court files and file numbers, such as probate in solemn form and revocation, would be initiated instead by interlocutory application within the single estate file. The procedure in each case would be only as elaborate as necessary to resolve the particular matter, ranging from an ordinary chambers argument to summary trial on affidavits to a regular civil trial with oral evidence.

Among the other significant changes to probate procedure proposed in this consultation paper are the following:

- a 21-day notice period that must elapse between the notice of an intended application for a grant of probate or administration and the filing of the application;

-abolition of the need to 'clear off' potential administrators having equal or prior right to a grant;

-provision for new procedures at the probate stage contemplated by the Wills, Estates and Succession Act, such as curative orders to admit wills to probate despite formal defects and rectification of wills;

-abolition of the distributions schedule (Part IV) of the disclosure document;

-disclosure of debts in the disclosure document would be limited to debts encumbering specific assets;

-discontinuance, consent dismissal, and settlement without leave of the court would be permitted in contested probate proceedings as in other civil matters, and default judgment would be possible except in proceedings for revocation;

-to avoid the need for a second chambers application to confirm a registrar's findings on an inquiry for passing of estate accounts or fixing the remuneration of a personal representative, the registrar's findings would be certified unless the court orders otherwise when directing the inquiry, and therefore would be binding on the interested parties, subject to appeal.

If you would like to comment on the proposed new probate rules, you may do so by July 15, 2010, by writing to the attention of Greg Blue Q.C., by mail, fax or email. The mailing address is:

British Columbia Law Institute
1822 East Mall
University of British Columbia
Vancouver, B.C.; V6T 1Z1

The fax number is (604) 822-0144.

The email address is .

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