Changes to the Probate Rules and Forms were brought into effect on July 1, 2015—that’s right, four days ago. I had heard that changes were coming, but I didn’t know what they were until very recently. The online consolidated Supreme Court Civil Rules has not as of today been updated to include the changes, but you can find them in B.C. Reg. 103, 2015 here.
There is a significant change to the procedure for making applications relating to estate grants in Rule 25-14. Under the rules as they stood before the amendments, many types of applications would be commenced by either a notice of application, if an estate file is already opened, or by requisition if nothing has been filed in relation to the estate. The types of proceedings to which this applies includes some potentially very contentious disputes such as passing over an executor. A requisition is a request to the court, and there are no rules saying who must be served, what they file to oppose it, or how long they have to file. Starting a contested proceeding by requisition doesn’t make sense.
Fortunately, as amended Rule 25-14 will now provide that where there has been an application for an estate grant, an application may be made by notice of application, but if there has not been an estate grant, then you may start a proceeding by a petition. In some cases, such as passing over an executor, it will be mandatory to start the proceeding by a petition rather than by a requisition. This makes a lot more sense.
Here are the amendments to Rule 25-14 (1) and (1.1), with deletions crossed out, and additions underlined:
A person If there has
been an application for estate grant, a person may apply in accordance with
Part 8, or, if nothing has been filed in relation to the estate, may, despite
Rule 2-1 (1) and (2) (a) and (b), apply by requisition in Form P41, for an
(b) granting administration with or without will annexed in circumstances in which the right to be appointed as the administrator is contested,
(c) revoking an authorization to obtain estate information or estate grant or an authorization to obtain resealing information or the resealing of a foreign grant,
(d) subject to subrule (1.2), removing or substituting a personal representative or, if different, the holder of an authorization to obtain estate information or the holder of an authorization to obtain resealing information,
(e) discharging a personal representative or, if different, the holder of an authorization to obtain estate information or the holder of an authorization to obtain resealing information,
other than a question or matter covered by Rule 2-1 (2) (c) or (d).
How to apply by petition for orders
(1.1) If there has been no application for estate grant, a person may, with notice, apply by petition to the court for an order
(a) passing over an executor,
(b) appointing an administrator of the estate under section 132 of the Wills, Estates and Succession Act,
(c) respecting production, delivery or filing of a testamentary document, and
(d) subject to subrule (2), respecting any other matter referred to in subrule (I).