Sunday, April 27, 2014

Subpoena for Testamentary Document or Grant

Supposing you are the executor of a will of someone who has died, intend to apply for a grant of probate of the will, but someone else has the original will, but won’t give it to you. What can you or your lawyer do?

In British Columbia the new probate rules, which came into effect on March 31, 2014, provide a mechanism to require a person in possession of the will to deliver it to a court registry. Rule 25-12 of the Supreme Court Civil Rules replaces, and is broader than, the old citation to bring in a will under the previous rules.

Rule 25-12 (1) provides that:
A person may apply for a subpoena to be issued to require a person to deliver to the registry one or more of a testamentary document, an authorization to obtain estate information, an authorization to obtain resealing information, an estate grant, a foreign grant, a resealed foreign grant and a certified or notarial copy of such a document.

The first step is to request the document sought.

Then to obtain a subpoena, you must file a requisition in Form P35 with supporting affidavit evidence.

The registrar will issue the subpoena in Form P37 if satisfied under subsection (3) that

(a) the document in relation to which the subpoena is sought is required for the
purpose of any application or other matter under this Part, and

(b) the person to whom the subpoena is addressed failed to comply with a
request of the applicant to provide the document to the applicant….

You will then need to arrange personal service of the subpoena.

The person subpoenaed must then within a specified period, either deliver the document to the registry, or provide the to the registrar, “an affidavit indicating that the document referred to in the subpoena is not in the person’s possession or control and setting out what knowledge the person has respecting that document.” Form P37 provides 14 days.

Subsection (6) provides a procedure for obtaining a warrant if the person subpoenaed does not comply.

If you receive a subpoena and wish to dispute it, you may bring an application under subsection (8) to set aside a subpoena “on the grounds that compliance with it is unnecessary or that it would work a hardship on the person.”

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