Desbiens v. Smith Appeal

When you apply for a grant of probate in British Columbia, you have to deliver a copy of the will and a notice of your intention to apply for the grant of probate to each of the beneficiaries of the will, and to those who may apply to vary the will under the Wills Variation Act, as well as to anyone who would receive a share of the estate if the deceased had died without a will. This is set out in section 112 of the Estate Administration Act.

The B.C. Court of Appeal has confirmed that these notice requirements are no mere formality. If the executor does not use reasonable diligence to find out the current addresses of those who are entitled to notice, the court may set aside a grant of probate. The case is Desbiens v. Smith, 2010 BCCA 394. I wrote about the trial decision here.

In his will, Charles Eldon Smith left everything to his widow. He had three adult children, with whom he had very limited contact. When he made his will, he did not tell his lawyer, whom he made his executor, about his children.

After his death, Charles Smith’s executor learned of the children. She found addresses in Mr. Smith’s address book. She sent the notice of her intent to apply for probate to these addresses, but the addresses were many years out of date. She did not make other efforts to find the children’s addresses.

Mr. Smith’s children found out about their father’s death three years after his death.

The three children then applied to vary their father’s will under the Wills Variation Act on the basis that he did not make adequate provision for them. But by the time they found out about their father’s death, the 6 month limitation period from the date of the grant of probate for bringing the claim had expired. The executor applied to have their claim dismissed on the grounds that the limitation period had expired.

The Supreme Court of British Columbia held that because the executor had not made reasonable efforts to give notice to the children, neither she nor Mr. Smith’s widow could rely on the limitation period.

The executor appealed. The Court of Appeal took a different approach from the Supreme Court Judge, but the effect is the same: the children may proceed with their Wills Variation Act claim. Mr. Justice Groberman for the Court of Appeal held that it was appropriate to revoke the grant of probate, and then issue a new grant to the executor. The limitation period would then begin to run from the date of the new grant of probate, with the effect that the children will be in time to pursue their claims.

In reaching his decision Mr. Justice Groberman discussed the notice requirements. He wrote at paragraph 28:

The notice requirement in s. 112 is a functional one – it is not a meaningless pro forma exercise. It is designed to ensure that the persons listed receive notice of probate. That function will not be fulfilled unless reasonable inquiries are made to ensure that the notices are sent to the correct addresses.

Then at paragraph 33:

[33] I do not suggest that executors and administrators face onerous requirements in determining the addresses of persons entitled to notice under s. 112 of the Estate Administration Act. All that is required is that the person giving notice exercise reasonable diligence in ascertaining the recipients’ addresses. In cases where, having exercised reasonable diligence, they still do not have confidence that they have obtained correct addresses, they must be fully candid in their affidavit in support of probate, and, in appropriate cases, should make application under s. 112(3) of the Act [which allows the court to dispense with notice on a person whose whereabouts are unknown].

Mr. Justice Groberman noted that one of the purposes of the requirement that notice be given is to ensure that anyone entitled to apply under the Wills Variation Act has notice that the estate is being administered. He wrote at paragraphs 66 through 68:

[66] With the enactment of dependent’s relief and wills variation legislation, a grant of probate (or of administration with will annexed) was given an ancillary purpose that was not present in ecclesiastical or common law: that of ensuring that all persons entitled to apply for relief under such legislation had notice that the estate was being administered. Where that purpose is not fulfilled, an important condition precedent for the grant is absent.

[67] The six-month limitation period under the Wills Variation Act is measured from the date that probate is granted for good reason. That is the date on which the court has signified that it is satisfied (by virtue of the requirements of s. 112 of the Estate Administration Act) that reasonable efforts have been made to notify persons having rights to apply under the Wills Variation Act.

[68] Where reasonable efforts to comply with s. 112 of the Estate Administration Act have not been made, probate should not issue. Where a grant of probate has issued notwithstanding a failure to comply with s. 112 of the Estate Administration Act, the Supreme Court has jurisdiction to revoke the grant, just as it would have if another condition precedent to the grant of probate had not been satisfied.

Mr. Justice Groberman held that it is appropriate in this case for the court to exercise its jurisdiction to revoke the probate, and issue a new grant to allow the Wills Variation Act claim to proceed. He noted that the children had brought their claims within six months of the date they found out that probate had been granted. Accordingly, they would not be unduly favoured by the revocation.