As I wrote acouple of weeks ago, the probate rules were amended effective July 1, 2015.
Among the changes is a new provision dealing with the procedure for appointing
a new personal representative (executor or administrator) when the deceased’s
personal representative dies before completing the administration of the
estate.
The new
provision, Rule 25-14 (1.2) reads as follows:
Substitution
of personal representative in the event of death
(1.2)If
a deceased's personal representative dies, a person may apply in accordance
with Part 8, subject to any directions given by the court under subrule (8) of
this rule, to be substituted as the personal representative by filing
(a) a copy of the death certificate of
the personal representative,
(b)
an affidavit setting out the request to be substituted as the personal
representative and specifying the right to be appointed as personal
representative on the basis that the person is one of the following:
(i)
the alternate executor;
(ii) entitled to apply for administration of the
estate in accordance with section 130 of the Wills, Estates and Succession Act;
(iii) entitled to apply for administration with
will annexed in accordance with section 131 of that Act, and
(c) an affidavit confirming delivery of
the affidavit referred to in paragraph (b) to
(i) every person who was entitled to notice
under the original application, and
(ii)
any executors who
(A)
did not receive notice of the original application, and
(B) have an equal or greater right to apply to be
the personal representative.
As I read this
provision together with Part 8 of the Supreme Court Civil Rules, which deals
with how applications are made to court, in most cases, a person applying under
this section (or his or her lawyer) will need to appear for a hearing before a
judge or court master. Part 8 contemplates a hearing unless the order is one
that may be made without notice or by consent of all of the parties. In most
cases there will be persons to whom notice must be given, and it is not always
convenient to have all parties sign a consent order, or there may be minors or
others without capacity to consent.
Unless
contested, the hearing should be straightforward, but with the need to appear,
and wait in court while other matters are heard, the expense may be higher than
if the order could be obtained by desk order (without a hearing).
The application
may be made by an alternate executor, if the first named executor dies after
probate. It may also be necessary if there are two executors, but he will
provides that if one dies, and alternate is appointed. If there is no alternate
named, then another person may apply to be appointed as an administrator.
Section 130 of
the Wills, Estates and Succession Act sets out the order of priority for
appointment as an administrator if there is no will, while section 131 sets out
the order of priority if there is a will, but there is no executor or alternate
executor willing and able to act. These sections are as follows:
Priority
among applicants — intestate estate
130 If a person dies without a will, the court
may grant administration of the deceased person's estate to one or more of the
following persons in the following order of priority:
(a) the spouse of the deceased person or
a person nominated by the spouse;
(b)
a child of the deceased person having the consent of a majority of the children
of the deceased person;
(c)
a person nominated by a child of the deceased person if that person has the
consent of a majority of the deceased person's children;
(d)
a child of the deceased person not having the consent of a majority of the
deceased person's children;
(e)
an intestate successor other than the spouse or child of the deceased person,
having the consent of the intestate successors representing a majority in
interest of the estate, including the intestate successor who applies for a
grant of administration;
(f)
an intestate successor other than the spouse or child of the deceased person,
not having the consent of the intestate successors representing a majority in
interest of the estate, including the intestate successor who applies for a
grant of administration;
(g)
any other person the court considers appropriate to appoint, including, without
limitation, and subject to the Public Guardian and Trustee's consent, the
Public Guardian and Trustee.
Priority
of applicants — administration with will annexed
131 If a person dies leaving a will, and the
executor named in the will renounces executorship or is unable or unwilling to
apply for a grant of probate, or if no executor is named in the will, the court
may grant administration with will annexed to one or more of the following
persons in the following order of priority:
(a)
a beneficiary who applies having the consent of the beneficiaries representing
a majority in interest of the estate, including the applicant;
(b)
a beneficiary who applies not having the consent of the beneficiaries
representing a majority in interest of the estate;
(c)
any other person the court considers appropriate to appoint, including, without
limitation, and subject to the Public Guardian and Trustee's consent, the
Public Guardian and Trustee.
Finally, if the
“chain of executorship applies” (see my previous post), it will not be
necessary for anyone to apply under Rule 25-14 (1.2). If the executor dies
after receiving an estate grant, but before completing the estate
administration, and the will does not name any other executor or alternate executor
willing and able to apply, the executor of the now deceased executor may
complete the administration. The executor’s executor will need to probate the
will of the deceased executor.
The authority
of the executor’s executor is confirmed in section 145 of the Wills, Estates
and Succession Act:
Executor
of deceased executor
145 If a deceased will-maker was an executor of a
person who died before the will-maker, the executor of the deceased will-maker
has all the rights, powers, rights of action and liabilities of the deceased
will-maker with respect to the estate of the deceased person.
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