B.C. Supreme Court Civil Rules for Contested Wills Should be Changed

 

Seven years ago, the British Columbia probate rules were overhauled when the Wills, Estates and Succession Act came into effect on March 31, 2014. The changes to the Supreme Court Civil Rules were intended to reduce the complexity and costs of proceeding related to wills and estates. In my experience some of the changes, particularly related to litigation concerning the validity of wills, has had the opposite effect, making litigation more complex and expensive. It is time for a review of the rules.

Most wills in British Columbia are not contested, and the process for probating (in other words proving) a will is not particularly complex. It involves the executor providing notice to beneficiaries and certain relatives of the deceased, and then filing the original will, a submission and affidavits.

But when someone argues that the will is invalid, then it is usually necessary to follow a different process referred to as “proving the will in solemn form.” This is a contested proceeding in which the Supreme Court of British Columbia determines whether the will is valid. These disputes often center around questions about whether the will-maker knew and approved of the contents of the will, had the mental capacity to make the will, and whether she was acting freely and voluntarily, as opposed to being pressured to make her will. Although many of these cases do settle, when they don’t it is usually necessary for each party to conduct a full investigation of the case, including examining the opposing party before trial, obtaining the file from the lawyer who prepared the will, and if capacity is in question getting the medical files and obtaining expert medical and psychological opinions. The facts may be hotly contested. Ultimately, the court may need to determine the validity of a will after a full trial, in which witnesses testify and are cross examined.

Before the Rules were changed in 2014, proving a will in solemn form was usually commenced by a notice of civil claim. This is the method most lawsuits involving contested facts are commence in British Columbia, from personal injury claims to wills variation proceedings. The notice of civil claim sets out the claim, the material facts alleged in support of the claim, and a summary of the legal basis for the claim. The defendants may file responses. Then each party is required to list all of the documents in their possession or control that may prove or disprove a material fact, and each party may examine the adverse parties under oath before trial. There are also rules intended to facilitate obtaining information form third parties. Ultimately, the issues are determined by a trial, although in some cases the trial may proceed on the basis of affidavit evidence, particularly where the conflicts in the evidence may be resolved without live testimony.

When the Rules were revised in 2014, they required that a proof-in-solemn form proceeding must be commenced either by an application in an existing lawsuit, or by petition. This is set out in Rule 25-14.  here is no provision allowing someone to begin the process by a notice of civil claim. Although the old rules did provide for a petition in some cases, these were rare and claims were commenced for the most part by a notice of civil claim.

A petition is a useful process for certain types of clams. For example, Rule 2-1 (2) (c) provides that a proceeding may be commenced by a petition if “the sole or principal question at issue is alleged to be one of construction of an enactment, will, deed, oral or written contract or other document.” A proceeding to interpret a will, where there is no question of its validity, can usually be resolved on the basis of the will itself, and affidavit evidence setting out the surrounding circumstances, such as the relationships between the will-maker and the beneficiaries. The contest is usually about how to interpret the will and facts, as opposed to a dispute about what the facts are (there are of course exceptions). Examinations for discovery and oral testimony are usually not required for the court to resolve the dispute. Petition proceedings are generally less expensive than a trial.

The problem is that petitions do not lend themselves to deciding the types of issues that arise when the validity of a will is contested. Fortunately, there are other rules that allow the court to change the process from a petition-type of proceeding to an action, or do give further directions on the process. These rules are set out in 22-1 (7) and 25-14 (8).

In practice what often happens is that the person wishing to commence a proof in solemn form proceeding will have to prepare, file and serve a petition together with supporting affidavits. Then either the petitioner or one of the respondents makes an application to convert the process into an action, or in other words, the type of process that is brought by notice of civil claim. Often, the order requires a notice of civil claim to be filed and served. The end result is that both time and money have been consumed by beginning the process with a petition and affidavits and then proceeding with a notice of civil claim. I have not kept track of the additional expense, but I suspect this process probably adds between $10,000 and $20,000 to most contested wills proceedings, and it takes additional court time because a judge or court master will often hear the application to change the process.

The other thing I have noticed is that some lawyers are ignoring the Rules altogether and beginning a proof in solemn form proceeding by a notice of civil claim.

I am not aware of any planned reviews of the probate rules, but it is time that the Supreme Court Civil Rules Committee did so.

Amendments to section 151 of the WESA

Section 151 of the Wills, Estates and Succession Act (the “WESA”), was amended effective September 16, 2019. This section allows someone who is not the deceased’s personal representative to apply to court to make or defend a claim on behalf of the deceased. The amendments make a number of procedural changes, some of which I will comment on.

As amended, section 151 now says:

151   (0.1)In this section, "specified person" means a beneficiary, an intestate successor or a person who may commence a proceeding claiming the benefit of Division 6 [Variation of Wills] of Part 4 [Wills].

(1)Despite section 136 [effect of representation grant], a specified person may, with leave of the court, commence proceedings in the name of the specified person and on behalf of the estate of the deceased person

(a)to recover property or to enforce a right, duty or obligation owed to the deceased person that could be recovered or enforced by the personal representative, or

(b)to obtain damages for breach of a right, duty or obligation owed to the deceased person.

(1.1)A specified person may apply for leave of the court under subsection (1) in the proceedings described in that subsection.

(2)Despite section 136, a specified person may, with leave of the court, defend in the name of the specified person and on behalf of the estate of a deceased person, a proceeding brought against the deceased person or the personal representative.

(2.1)A specified person may apply for leave of the court under subsection (2) in the proceeding described in that subsection.

(3)The court may grant leave under this section if

(a)the court determines the specified person seeking leave

(i)has made reasonable efforts to cause the personal representative to commence or defend the proceeding,

(ii)has given notice of the application for leave to

(A)the personal representative,

(B)any other specified persons, and

(C)any additional person the court directs that notice is to be given, and

(iii)is acting in good faith, and

(b)it appears to the court that it is necessary or expedient for the protection of the estate or the interests of a specified person for the proceeding to be brought or defended.

(4)On application by a specified person or a personal representative, the court may authorize a person to control the conduct of a proceeding under this section or may give other directions for the conduct of the proceeding.

First, this section now allows a person who is not a beneficiary or intestate successor, but who is making a claim to vary the deceased’s will, to apply under section 151. A spouse or child who may apply under Part 4, Division 6 of the WESA for a share or larger share of the deceased’s estate. As was noted in Sharma v. Sharma, 2018 BCSC 1262, a wills variation claimant did not have standing under section 151 unless she was already a beneficiary. Now the definition of “specified persons” including wills variation claimants.

Second, it is clear now that the person applying under this section may file a notice of civil claim or petition before making the application. This may be inferred from subsection (1.1) which says that leave may be applied for in the proceedings for which the applicant is seeking leave.

Third, the wording of this section used to say that the person making or defending the claim was to do so “in the name and on behalf of the personal representative of the deceased person.” If say a beneficiary wished to make a claim for the benefit of the estate against the personal representative, she would have to name the personal representative as both a plaintiff and defendant, which is absurd. Now the person making or defending a claim does so in her own name “and on behalf of the estate of the deceased person.”

Supreme Court Civil Rules Amendments Change Procedures in Estate Litigation

Admittedly this isn't the most eye-catching title, but there are some significant amendments to the Supreme Court Civil Rules affecting the conduct of estate litigation matters that came into effect on July 1, 2019. I will highlight a couple of changes.

One of the changes is to broaden the scope of those persons who may file a notice of dispute. The purpose of a notice of dispute is to prevent the issuance of an estate grant when there is a dispute about a will or about the appointment of a personal representative. For example, someone may file a dispute if she alleges the will is invalid, or if she believes there are grounds to pass over the executor. 

The rule used to provide that a notice of dispute could be filed by a person to whom notice must be given of the application for an estate grant, which generally limited it to those who are beneficiaries or would be entitled to notice on an intestacy. The problem was that other people, such as beneficiaries of a prior will might have good grounds to file a notice of dispute, but would not be entitled to notice. I wrote about the problem in a previous post.

Now Rule 25-10 (1) also allows a person “who claims an interest under a prior or subsequent will” to file a notice of dispute.

Another welcome change is that Rule 25-14 has been amended to provide that most applications must now be brought either by a notice of application, if a probate file has been opened, or by petition if a probate file has not been opened. Previously, the Rules provided that many applications had to be made by requisition if a probate file had not been opened. In most cases, starting a proceeding, which in some cases could include multi-million dollar litigation, by requisition was nonsensical. A requisition is a request to the court, which is generally not served on other parties, and there are no rules setting out a time for other parties to respond. For example, before these amendments, if no probate file had been open, someone wishing to bring an application under Section 58 of the Wills, Estates and Succession Act asking the court whether a document that does not comply with the formal signing and witnessing requirements of a valid will should be given effect as a will, was required to apply be requisition. There was even a prescribed form of requisition. In practice, lawyers either filed a submission for an estate grant and then brought an application by notice of application, or ignored the rule requiring a requisition and proceeded by petition. There have been several decided cases under section 58 that were brought be petition. The change brings the Rules more in line with the practice. In contrast to requisitions, there are well developed rules relating to service and filing of responses (Rule 16-1).

Rule 25-14 (1.11) provides that applications may be made by requisitions in limited circumstances. You can use a requisition for an order pursuant to Rule 25-2 (14) changing the class of persons to whom notice of the application for an estate grant must be given, or dispensing with the requirement that the notice be sent to certain beneficiaries. You can also use a requisition to apply to shorten the time from 21 days in which notice of an application for an estate grant must be given before filing the materials for an estate grant.

As at today’s date, July 6, 2019, the online version of the Supreme Court Civil Rules in bclaws has not been updated to reflect these changes. I hope it will be updated within the next week.

Proposed Amendments to the Wills, Estates and Succession Act

The British Columbia government has introduced changes to the Wills, Estates and Succession Act. The Attorney General Statutes AmendmentAct, 2019, if enacted, will include changes to sections 16, 61, 130, 131, 151, 152 and 155. I will highlight some of the changes to sections 151 and 155.

Section 151 permits a beneficiary of an estate to apply to court to make or defend a claim on behalf of the estate if the personal representative does not do so. For example, a beneficiary of an estate may wish to make a claim that a house that the surviving joint tenant of the deceased’s house holds the house in trust for the estate, while the surviving joint tenant claims beneficial ownership. If the personal representative refuses to pursue a claim, or perhaps the personal representative is also the surviving joint tenant, the beneficiary may apply to court pursuant to section 151 for permission to bring the claim.

The current wording in section 151 only allows “a beneficiary or intestate successor” to apply. What if the person who wishes to make a claim is not currently a beneficiary of the will, but is making a claim as a child or spouse of the deceased to vary the will so that she will receive a share of the estate? Section 151 does not appear to apply to the wills variation claimant to allow her to apply for leave to sue. This is what occurred in Sharma v. Sharma, 2018 BCSC 1262, which I wrote about here.

The proposed changes to section 151 will allow a wills variation claimant to apply under that section. Instead of referring to “a beneficiary or an intestate successor,” the section will refer to a “specified person,” which is defined as “a beneficiary, an intestate successor or a person who may commence a proceeding claiming the benefit of Division 6 [Variation of Wills] of Part 4 [Wills].”

The current wording of section 151 also requires a person who is given permission to sue on behalf of the estate to bring the claim “in the name of and on behalf of the personal representative.” If the claim is against the personal representative this leads to the absurdity of the same person appearing in the style of cause as both a plaintiff and a defendant. For example, the style of cause may be John Smith as executor of the will of Mary Smith v. John Smith. If I may put it technically, a person appearing as both a plaintiff and a defendant is a pretty big no no.

The proposed changes include amending section 151 so that the claim will be brought “in the name of the specified person and on behalf of the estate,” which will solve the problem of the same person’s name appearing as both a plaintiff and a defendant.

Section 155 provides that the personal representative must not distribute the estate within 210 days of the estate grant, or longer if a wills variation or certain other type of proceeding is brought. However, as the section is currently worded, the personal representative may distribute

(a)   with the consent of all beneficiaries and intestate successors entitled to the estate, or

(b)   by order of the court.

The problem with this wording is that it does not expressly require the consent of a person who is not a beneficiary, but who may bring a wills variation claim. I would argue that the main purpose of this section is to ensure that a person with a wills variation claim has the opportunity to proceed before the estate can be distributed. The 210 days from an estate grant corresponds with the amount of time to both file a wills variation claim (180 days) and serve the claim on the personal representative (a further 30 days).

The proposed amendments will require the consent of

(a) all beneficiaries who have an interest in the estate;

(b) all persons who may commence a proceeding under Division 6 [Variation of Wills] of Part 4 [Wills] in relation to the estate.

This will make it clear that the personal representative will require the consent of the deceased’s spouse and children, whether or not they are beneficiaries of the will.

There is one proposed change that I don’t like. Proposed new section 155 (1.3) provides:

(1.3) Despite subsections (1.1) and (1.2), the personal representative of a deceased person may distribute the estate of the deceased person without the consent of one or more persons whose consent would otherwise be required if the personal representative sets aside all of the following:

(a) all the specific gifts to beneficiaries who have not been located;

(b) a sum equal to the share of the residue of all beneficiaries who

(i) have an interest in the residue, and

(ii) have not been located;

(c) a sum equal to the share of the estate of all intestate successors who

(i) have an interest in the estate, and

(ii) have not been located;

(d) a sum equal to an amount sufficient to satisfy any claim under Division 6 [Variation of Wills] of Part 4 [Wills] in relation to the estate.

Subsections (a), (b) and (c) are fine, but (d) concerns me. The nature of wills variation claims is such that it is difficult to predict how much will be awarded to a claimant. One might think for example if the deceased left his entire estate to two of three children, that setting aside one-third for the disinherited child making a wills variation claim, but it is quite possible that the disinherited child will receive more, particularly if the other children received significant amounts from the deceased outside of the estate. Although the personal representative is supposed to be neutral in wills variation claims, it is not unusual for the personal representative to be hostile towards the claimant and it may underestimate the potential claim. It is preferable to require the personal representative to make a court application before making a distribution without the consent of the wills variation claimant.

Sharma v. Sharma

Prem Lata Sharma is suing her sisters Raj Rani Sharma and Simmi Sharma. She is seeking to vary their mother Rama Rani Sharma’s will, pursuant to which she was disinherited, and she is also asking the court to declare that they hold title to their mother’s house in trust for the estate. Raj Rani Sharma is both a beneficiary and also the executor of the will. Their mother had gratuitously transferred the house into a joint tenancy with them, and their position is that they received the house by right-of-survivorship. The house is worth about $1.5 million, and the other assets are worth only about $100,000. The plaintiff’s claim that her sister’s hold the house in trust for their mother’s estate is important, because if they are entitled to it by right-of-survivorship, it will not be subject to the plaintiff’s wills variation claim.

The defendant sisters applied to court to dismiss the claim that they hold the house in trust for their mother’s estate. They argued that the plaintiff was attempting to make a claim on behalf of their mother’s estate, and that she could not do so without first applying under section 151 of the Wills, Estates and Succession Act for leave from the court to make a claim on behalf of the estate. She had not done so in this case.

Section 151 (1 provides that

… a beneficiary or an intestate successor may, with leave of the court, commence proceedings in the name and on behalf of the personal representative of the deceased person

(a)        to recover property or to enforce a right, duty or obligation owed to the deceased person that could be recovered or enforced by the personal representative, or

(b)        to obtain damages for breach of a right, duty or obligation owed to the deceased person.

The plaintiff argued that she did not have to bring an application under section 151 for two reasons. First, she argued that she was not making a claim on behalf of the estate, but in her personal capacity for a declaration. Secondly, because she is not a beneficiary of the will nor an intestate successor (she would be only if there was not a will disposing of all of the estate), she does not have standing to apply under section 151.

In Sharma v. Sharma, 2018 BCSC 1262, Mr. Justice Punnett agreed with the plaintiff that she did not need to apply under section 151, and that she had standing to ask the court to declare that her sisters held the house in trust for their mother’s estate.

Mr. Justice Punnett noted that section 151 was enacted to overcome a gap in the law to allow beneficiaries to bring or defend a claim when the personal representative declined to do so.

Mr. Justice Punnett agreed that in this case the plaintiff could not apply under section 151. She is not a beneficiary of the will. Nor is she an intestate successor. Mr. Justice Punnett noted that the wording of section 151 refers to “intestate successor” in contrast to the notice provisions of the Supreme Court Civil Rules which refer to a person who “would have been an intestate successor if the deceased did not leave a will.” Accordingly, the language in section 151 is not broad enough to allow the plaintiff to apply pursuant to section 151.

Mr. Justice Punnett also held that the plaintiff as a person making a claim to vary the will had a sufficient interest to ask the court to declare that assets are estate assets. He cited several cases decided prior to section 151 coming into effect in which the courts had considered trust claims concurrently with will variation claims. He wrote:

[36]        In Doucette [v. McInnes 2007 BCSC 289] the court found a non-executor had standing to seek a declaration of trust alongside a will variation claim. The court noted that in Mordo v.Nitting, 2006 BCSC 1761, a Wills Variation Act action, the plaintiff was not a beneficiary and was completely excluded by the will and all of the estate passed by jointure to the deceased’s daughter. Justice Wedge permitted the plaintiff’s arguments respecting the jointures to go forward. There was no challenge to the plaintiff’s standing to advance that argument. A person then with an interest in an estate is entitled to inquire about assets that may form part of the estate. See also: Drummond v. Moore, 2012 BCSC 496 at paras. 29 to 35, Kuo v. Kuo, 2014 BCSC 519 at paras. 202-208, and Kurmis v. Zilinski, 2011 BCSC 1433 at paras. 22-24.

[37]        As a result, the plaintiff, who has an interest in the estate and its potential assets is entitled to seek declaratory relief. Were that not the case and given her lack of ability to apply under s. 151 of WESA, the plaintiff and the court would be denied access to a consideration of the assets that may properly form part of the estate.

[38]        As a result, the plaintiff is not required to obtain leave from the court pursuant to s. 151 of WESA before commencing her action.

Would the plaintiff have been required to seek leave of the court under section 151 to ask for a declaration that her sisters held title to the house in a joint tenancy if she were a beneficiary of the will? I would argue that it should not be necessary to apply under section 151 even if she were a beneficiary with standing to apply under that section. The same reasoning should apply that she would have a personal claim for declaratory relief against the personal representative and another beneficiary, in contrast to a claim against a third party. Section 151 should be applied in accordance with its remedial intent to facilitate claims on behalf of estates when the conditions of section 151 are met, and not to prohibit claims that could have been brought before section 151 came into effect. To require a beneficiary to apply under section 151 before making a claim that the personal representative holds assets in trust for the estate would be to needlessly add expense. It also results in the absurdity that the personal representative’s name will appear as both plaintiff and defendant in view of the fact that the beneficiary may “commence proceedings in the name of and on behalf of the personal representative of the deceased person….”

Converting a Petition or Application to Prove a Will into an Action

The Supreme Court Civil Rules provide that a proceeding to prove the validity of a will must be started by either a notice of application, if there is an existing proceeding in which it is appropriate to do so, or by a petition. This is set out in Rule 25-14(4). This is a significant change to the practice. Prior to the changes to the Rules with the coming into force of the Wills, Estates and Succession Act, contested proceedings to prove a will were brought by a notice of civil claim. A proceeding begun by Notice of Civil Claim is referred to as an “Action.” The difference is that an Action has pretrial procedures such as disclosure of documents, and oral examinations for discovery, and ultimately a trial with witnesses testifying in court. In contrast, a notice of application or petition does not have the pretrial disclosure process and the evidence is by way of affidavits.

The changes in the procedure may have significant implications for someone challenging a will, perhaps on the grounds that the will-maker did not have the mental capacity to make a will or was unduly influenced. The person making the claim often will not have as much information as the person seeking to uphold the will, often the named executor. Successful challenges of wills may depend on obtaining pretrial disclosure from the other parties, as well as information from persons who are not part of the lawsuit. Accordingly, the Rule change may tend to work against those challenging a will, including those with meritorious claims.

Fortunately, the Supreme Court Civil Rules allow the application to prove a will to be converted into an Action. Rule 22-1(7)(d) allows the court to convert an application or petition into an action. Rule 25-14 (8) allows the court to give directions about procedure in estate maters and includes such things as ordering examinations for discovery and discovery of documents and how the evidence will be presented.

How difficult is it to persuade the court to convert a proceeding to prove a will into an Action? The criteria were recently considered by the British Columbia Court of Appeal in Kerfoot v. Richter, 2018 BCCA 238. In this case, Mary Richter is claiming that her mother, Bernice Richter’s will dated July 19, 2012 is invalid. In the will, Mary Richter’s brother and sister are each left 45 percent of the residue of their mother’s estate and she is left the other 10 percent. She alleges that her mother did not have capacity to make the will and that her mother was unduly influenced to make the will.

The named executor, Mr. Barry Kerfoot, brought a petition in accordance with the Rules to prove the validity of the will in solemn form. Mary Richter applied to convert the proceeding into an action, and the Supreme Court Judge hearing the application dismissed her application. She appealed to the Court of Appeal.

In allowing the appeal and ordering that the proceeding be converted into an action, Madam Justice Fisher applied the decision in BritishColumbia (Milk Marketing Board) v. Saputo Products Canada G.P. / SaputoProduits Laitiers Canada S.E.N.C., 2017 BCCA 247, which held that a proceeding brought by petition should be converted into an Action if there are disputes of facts or law, unless the party requesting a trial is bound to lose.

Madam Justice Fisher wrote that the judge hearing the application should not weigh the evidence. She wrote at paragraph 27:

[27]       In my view, the Saputo test precludes a judge from weighing evidence. Applying Robertson v.Dhillon, 2015 BCCA 469, this Court confirmed that the test is akin to the test to be applied for summary judgment: whether, on the relevant facts and applicable law, there is a bona fide triable issue. In the context of this case, where there are factual disputes, the chambers judge was to determine whether Mary, as the party requesting the trial, was bound to lose; more particularly whether there was a triable issue with respect to Bernice’s testamentary capacity or the issue of undue influence.

The judge hearing the application may, however, consider affidavit evidence as well as the pleadings in determining whether there is a triable issue. Madam Justice Fisher wrote:

[31]       While a judge is not to weigh evidence, he or she may draw inferences that are strongly supported by undisputed facts. Importantly, a party seeking to establish that there is a triable issue cannot rely on mere allegations but must establish the existence of material issues: Canada (Attorney General) v. Lameman, 2008 SCC 14 at para. 11. It is this latter requirement that precludes a matter from being referred to trial on the basis of mere assertions.

In this case, the Court of Appeal found that Mary Richter had sufficient evidence to establish a trial issue. Madam Justice Fisher wrote:

[34]       I appreciate the chambers judge’s concerns about the weakness of Mary’s evidence, as some of it went no further than mere allegations. However, the fact that Mary had no first-hand knowledge of the events leading up to the making of the impugned will is hardly surprising given the nature of the issues. Proving undue influence is not easy. Section 52 of WESA has shifted the onus of proof to the defender of a will once the person challenging it has shown that the testatrix was in a relationship of dependency with the person alleged to have exerted undue influence, or one in which the potential for domination existed.

[35]       Undue influence may be established through circumstantial evidence. Mary’s pleadings and evidence contain conclusory statements about many of the events leading up to the execution of the impugned will, but they also raise factual issues from which inferences of undue influence could be drawn. These issues relate to Bernice’s advanced age and declining health, her dependence on John and Janet [Mary Richter’s brother and sister] at the relevant times, John and Janet’s advance knowledge of the impugned will, and the marked difference between the impugned will and the prior wills. Mary also provided direct evidence contradicting most of the reasons expressed in the impugned will for disinheriting her.

As I interpret this decision, the party seeking to convert the procedure into an action will generally not be required to have significant evidence (which as noted above, may be difficult for a party challenging the will to obtain without document discovery and examinations for discovery) but must have some basis for demonstrating that there is a triable issue.

This brings me to my criticism of the changes to the Rules when the Wills, Estates and Succession Act came into force. Although a proceeding to prove a will may be relatively easy to convert into an Action, it requires an additional step in the lawsuit, namely the application to court to convert the proceeding. This just adds extra legal expense. It would be preferable if the Rules were changed to allow a proof of a will proceeding to be started by a notice of civil claim.

Gordon Estate

Section 151 of the Wills, Estates and Succession Act permits a beneficiary of a will, or in the case of an intestacy, an intestate successor to apply to court to bring or defend a claim in the name of the personal representative.

The conditions for a successful application are set out in section 151 (3) as follows:

(3)The court may grant leave under this section if

(a)the court determines the beneficiary or intestate successor seeking leave

(i)has made reasonable efforts to cause the personal representative to commence or defend the proceeding,
(ii)has given notice of the application for leave to

(A)the personal representative,
(B)any other beneficiaries or intestate successors, and
(C)any additional person the court directs that notice is to be given, and

(iii)is acting in good faith, and

(b)it appears to the court that it is necessary or expedient for the protection of the estate or the interests of a beneficiary or an intestate successor for the proceeding to be brought or defended.

In Gordon Estate, 2018 BCSC 487, Mr. Justice Milman granted leave to the University of British Columbia to bring a claim in the name of the executor of Mary Gordon’s will, David Ohori, against Mr. Ohori himself and his wife to set aside the transfer of a house from Ms. Gordon to them, as well as claims to other assets they received during her lifetime.

The University of British Columbia is alleging that the transfer of the house was gratuitous and as such the presumption of resulting trust, or in other words, the presumption that the transfer was not a gift, applies to the transfer. The University is also alleging that Ms. Gordon did not have sufficient mental capacity at the time of the transfer to confer a gift. If the claim is successful, the house and other assets will form part of Ms. Gordon’s estate, distributable under her will.

The University is the residual beneficiary of Ms. Gordon’s will, and if the transfer and other transactions stand, then there would only be about $153,000 in her estate, most of which would be distributed to other beneficiaries, with little or nothing left for the University.

To succeed in the application, it was necessary for the University to show that it was necessary or expedient to allow the University to bring the claim on behalf of the personal representative.

In this case, the University provided evidence from Ms. Gordon’s long-time lawyer, Mr. Berardino, that when he met with her before she signed a transfer of her house to Mr. Ohori and his wife, she appeared confused and he did not consider that she had the mental capacity to transfer the house. He declined to act in the transfer, but a different lawyer, Mr. Miller, considered that she had capacity and witnessed the transfer document.

In this kind of application, the judge does not make a determination on the ultimate question of whether the transfer and other transactions are valid, but rather whether there was a sufficient basis for the claim to proceed.

Mr. Justice Milman found that the University of British Columbia met the requirements to satisfy section 151. He wrote:

[49]         I have concluded that UBC should be granted leave to commence an action on the terms sought. Because the proposed action will therefore proceed, I intend to say the minimum necessary to explain my conclusion in that regard. 

[50]         In summary, I am not persuaded that I can properly presume that the Deceased was competent to transfer her assets and that Mr. Miller competently assessed her competence to do so, as Mr. Ohori urges me to do. There is other evidence before me, particularly that of Mr. Berardino and the results of the testing that the Deceased underwent shortly before those events, that, at the very least, calls into doubt the soundness of any such presumptions, even if they might otherwise apply. 

[51]         Mr. Miller did not provide an affidavit himself. His hand-written notes of his one and only conversation with the Deceased, which are attached to Mr. Ohori’s affidavit, do not elucidate his practice in interviewing persons in the Deceased’s situation. In particular, there is no description of the specific questions he asked and the specific answers the Deceased gave to support Mr. Miller’s apparent conclusion that the Deceased “was able to tell me about her assets.”  That is particularly problematic in light of Mr. Berardino’s account of how the Deceased had earlier, on more than one occasion, laboured under the false impression that she had two pieces of real property to dispose of, rather than just one. Mr. Berardino’s concerns as to the Deceased’s ongoing lack of capacity are entitled to significant weight because of his longstanding relationship with her. 

[52]         The observations of Mr. Miller, even if taken at face value, pertain only to the transfer of the Property. Mr. Ohori has adduced little or no evidence to support the validity of the other transfers that he received in the final months of the Deceased’s life. 

[53]         Finally, although I agree with Mr. Ohori that his evidence, if accepted, could rebut the presumption of resulting trust, that evidence can only be assessed properly in the context of the broader inquiry that will now have to take place into the Deceased’s state of mind, particularly her capacity to form the intentions that Mr. Ohori attributes to her.

B.C. Supreme Court Rules Committee Inviting Comments on Proposed Changes to Probate Rules

The Attorney General’s B.C. Supreme Court Rules Committee is requesting comments on proposed changes to the probate rules. You can read the proposed changes here.

A couple of the proposed changes caught my eye. One proposed changes to broaden the class of persons who may file a notice of dispute to oppose an estate grant. As I previously wrote the current Rule 25-10 (1) is too restrictive. Only those to whom notice of the application for an estate grant must be given are entitled to file a notice of dispute. In the case of an application to probate a will, the applicant must give notice to all of those who are named beneficiaries in the will, and anyone else who would be entitled to share in the estate on an intestacy. However, someone who does not fall within one of those categories, but who is a beneficiary under a previous will, does not appear to have the right to file a notice of dispute. The proposed change would allow anyone with an interest under a prior or later will to file a notice of dispute.

A second proposed change the caught my eye is a proposed change to Rule 25-14 which currently provides that some types of claims could be commenced by a requisition if there has been no application for an estate grant. For example, currently you can apply to pass over and executor by requisition, if no application for an estate grant has been filed.

Requisitions are in my view inappropriate for commencing litigation. There are no rules governing who is entitled to notice of the application, nor times for responding. The proposed change would eliminate the ability to make applications by a requisition. The exceptions under the proposed changes are applications which may appropriately be made without giving anyone notice. For example, under the proposed changes, you would be able to make an application to shorten the 21-day waiting period to file a submission for an estate grant following the date you mail a notice to the beneficiaries and those who would be entitled to a share of the estate on an intestacy.

In most cases, a petition would replace a requisition. 

You may make comments by email to AGSupremeCourtRulesCommittee@gov.bc.ca  until October 16, 2017.

B.C. Supreme Court Considers Criteria for Section 151 Application in Bunn v. Bunn Estate

In a reasons for judgment issued on November 18, 2016, Madam Justice Gray considered the tests set out in section 151 of the Wills, Estates and Succession Act for allowing a beneficiary of an estate to bring a claim on behalf of the estate, and in the name of the deceased’s personal representative. The case is Bunn v. Bunn Estate, 2016 BCSC 2146, and the decision provides an indication that a successful application under this section may require the applicant to provide a significant amount of information concerning the merits of a claim, and sufficient evidence for the court to weigh the costs of proceeding with the potential benefits to the estate of doing so.  Although this is not the first reported decision on section 151, in the other case of which I am aware, Werner v. McLean, 2016 BCSC 1510, the application for an order under section 151 was not opposed, and, accordingly, the court did not need to consider the tests in depth.

Section 151 is a new provision that came into effect with the Wills, Estates and Succession Act, and I am not aware of any similar provisions in other Canadian provinces. Accordingly, this case may very well lay the foundations for future decisions in British Columbia.

This section provides as follows:

151  (1) Despite section 136 [effect of representation grant], a beneficiary or an intestate successor may, with leave of the court, commence proceedings in the name and on behalf of the personal representative of the deceased person

(a) to recover property or to enforce a right, duty or obligation owed to the deceased person that could be recovered or enforced by the personal representative, or

(b) to obtain damages for breach of a right, duty or obligation owed to the deceased person.

(2) A beneficiary or an intestate successor may, with leave of the court, defend in the name and on behalf of the personal representative of a deceased person, a proceeding brought against the deceased person or the personal representative.

(3) The court may grant leave under this section if 

(a) the court determines the beneficiary or intestate successor seeking leave

(i) has made reasonable efforts to cause the personal representative to commence or defend the proceeding,

(ii) has given notice of the application for leave to

(A) the personal representative,
(B) any other beneficiaries or intestate successors, and
(C) any additional person the court directs that notice is to be given, and

(iii) is acting in good faith, and

(b) it appears to the court that it is necessary or expedient for the protection of the estate or the interests of a beneficiary or an intestate successor for the proceeding to be brought or defended.

(4) On application by a beneficiary, an intestate successor or a personal representative, the court may authorize a person to control the conduct of a proceeding under this section or may give other directions for the conduct of the proceeding.

In Bunn, Jennifer Bunn, one of the beneficiaries of her mother’s estate, wished to bring a claim against her brother challenging a number of gifts and transactions made by their mother during the mother’s lifetime. The beneficiary alleged, among other things, that her brother obtained benefits by exercising undue influence over their mother.

She requested that her cousin, who was her mother’s executor, bring the claim on behalf of the estate, but he refused to do so. The executor reviewed the transactions and in his view, the transactions were done with the mother’s knowledge, and were not induced by the exercise of undue influence.

In this case,  Madam Justice Gray found that the applicant had made reasonable efforts to cause the executor to bring the claim, that she had given proper notice of the application to the executor and the beneficiaries, and that she was acting in good faith.

Madam Justice Gray considered the further requirements of the section, and looked at by analogy the jurisprudence in respect of derivative actions by shareholders on behalf of a company under the Business Corporations Act. She addressed the criteria for exercising her discretion as follows:

[48]         Both s. 151 of WESA and s. 233 of BCA give the court discretion as to whether to make the order sought by using the words that the court “may” grant leave.

[49]         As set out in Primex [Investments Ltd. v. Northwest Sports Enterprises Ltd. (1995), 13 B.C.L.R. (3d) 300 (S.C.), aff’d (1997), 26 B.C.L.R. (3d) 357 (C.A.)], an applicant for derivative leave must establish not only an arguable case, but also that the potential relief in the proposed action is sufficient to justify the inconvenience to the company of being involved in the action.

[50]         In my view, a proceeding may be “necessary” under s. 151 of WESA if the personal representative is unwilling or unable to proceed. It may be “expedient” if it is in the best interests of the estate.

[51]         In this case, the applicant is a beneficiary of the Estate and seeks the order under s. 151 of WESA on the basis that the claim, if successful, will increase the value of the Estate. In such a case, in my view, to satisfy the court that it should exercise its discretion to grant leave to commence litigation on behalf of the estate, the applicant must show not only that there is an arguable case, but also that the potential relief in the action is sufficient to justify the inconvenience to the estate of being involved in the action, and that proceeding is overall in the best interests of the estate. In my view, that must involve a consideration of the costs of proceeding, including the potential of a costs award against the estate if it fails. Further, in my view, in determining whether the proposed lawsuit appears to be in the best interests of the estate, the court can consider the strength of the proposed claim based on a limited weighing of the evidence.

[52]         I reject the argument made by the Proposed Defendants to the effect that the court should show deference to the views of the executor, and grant leave only if the executor is in a conflict of interest. The views of the executor and the basis of those views are simply a factor for consideration.

Madam Justice Gray then analyzed the evidence before her and the law in some depth (the analysis of undue influence provides a very clear treatment of the subject, but for the purpose of this post, I am focused on section 151).  She concluded that the applicant did not have an arguable case in respect of any of her claims.

But even if the applicant had persuaded the Court that she had an arguable case, Madam Justice Gray wrote that she would have required more information concerning the economic s of the litigation, including costs and potential benefit to the estate, before exercising her discretion to allow the applicant to bring the claim on behalf of the estate. She wrote,

[232]     Jennifer’s evidence does not set out a plan for the litigation. She has not provided an estimate of how much the litigation would cost to prosecute, or explained who she proposes would pay the prosecution costs initially and ultimately, or detailed what funds would be available from her or in the Estate to satisfy an award of costs in favour of Chris or Charters or both of them. In my view, the court should be provided with such evidence by an applicant for leave to commence an action on behalf of an estate.

[233]     If Jennifer had established an arguable case to challenge any of the transactions, and the Court were to consider whether the proposed litigation was in the best interests of Joyce’s Estate, the Court would require further information to determine whether the potential relief in the action would be sufficient to justify the inconvenience to the Estate of being involved in the action.

Madam Justice Gray dismissed the application.

This case indicates that to successfully make an application under section 151 a beneficiary will need to provide the court with ample materials to show that there is an arguable case, and to allow the court to weigh the costs and the benefits of allowing the beneficiary to bring a claim on behalf of the estate. 

British Columbia Court of Appeal Consultation Paper for Civil Rule Reform

The British Columbia Court of Appeal published a Consultation Paper for Civil Rule Reform in November 2015. As set  out in the Report, "[t]he purpose of the British Columbia Court of Appeal’s rule reform initiative is to simplify the rules, make appeal proceedings more affordable and address anomalies in the existing Court of Appeal Act and Rules."

 

Anyone wishing to make submissions may do so by March 18. 2016 by email to BCCACivilRules@courts.gov.bc.ca.

Changes to Probate Rules and Forms Effective July 1, 2015

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:

How to apply for most applications

(1)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 order

(a) under Rule 25-2 (14),

(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,

(f) passing over an executor,

(g) appointing an administrator of an estate under section 132 of the Wills, Estates and Succession Act,

(h) removing or renewing a notice of dispute,

(i) that a foreign grant of probate or administration not be resealed,

(j) requiring security for the administration of an estate,

(k) varying or substituting security for the administration of an estate,

(l) directing that security be assigned to a person named in the order,

(m) respecting production, delivery or filing of

(i)   a testamentary document,

(ii)   a certified or notarial copy of an authorization to obtain estate information,

(iii)   an estate grant,

(iv)   an authorization to obtain resealing information, or

(v)   a resealed foreign grant,

(n) Repealed. [B.C. Reg. 44/2014, Sch. 1, s. 12 (c).]

(o) for the passing of accounts,

(p) fixing and approving the remuneration of a personal representative, or

(q) subject to subrule (2), respecting any other matter concerning

(i)   an authorization to obtain estate information,

(ii)   an authorization to obtain resealing information,

(iii)   a grant of probate,

(iv)   a grant of administration with or without will annexed,

(v)   an ancillary grant,

(vi)   a resealing, or

(vii)   the office of personal representative,

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).

Restrictions on Who May File a Notice of Dispute

[Since I wrote this post, the Supreme Court Civil Rules have been amended effective July 1, 2019, to allow a person “who claims an interest under a prior or subsequent will” to file a notice of dispute, thus alleviating the problem discussed below.]

One of the changes made to British Columbia’s rules governing probate procedures that came into effect on March 31, 2014, was the replacement of caveats with notices of dispute. One of the main purposes of both caveats under the former rules and notices of dispute under the new rules is to prevent the court from issuing a grant of probate of a will for a period of time to allow someone who wishes to challenge the validity of the will to do so.

I have already written about the new notice of dispute in Rule 25-10 of the Supreme Court Civil Rules, but I confess I had over looked a significant change. The new rule appears to contemplate that only those who are entitled to notice of an application for an estate grant may file a notice of dispute.

Subrule 25-10 (1) says:

Notice of dispute

(1)To oppose the issuance of an estate grant, an authorization to obtain estate information or an authorization to obtain resealing information or to oppose the resealing of a foreign grant, a person to whom documents have been or are to be delivered under Rule 25-2 (2) must file a notice of dispute that accords with subrule (3) of this rule before the earlier of

(a) the issuance of an authorization to obtain estate information or an authorization to obtain resealing information, and

(b) the issuance of an estate grant or the resealing of a foreign grant.

Although subrule (1) does not expressly say that only those who are entitled to notice under Rule 25-2(2) may file a notice of dispute, subrule (3) states that the notice of dispute must state that he or she is entitled to notice:

Contents of notice of dispute

(3)A notice of dispute referred to in subrule (1) must be in Form P29, must provide an address for service of the disputant, which address for service must be an accessible address that complies with Rule 4-1 (1), and must disclose

(a) that the disputant is a person to whom documents have been or are to be delivered under Rule 25-2 (2), and

(b) the grounds on which the notice of dispute is filed.

Who is entitled to notice under Rule 25-2 (2)? To apply for an estate for a will, the applicant must provide the notice to any other executor with an equal or prior right to apply, all of the beneficiaries of the will, and anyone who would receive a share of the estate of the will-maker had died without a valid will. Anyone who falls into one of those categories may file a notice of dispute if he or she does not think the will is valid.

But what if you are a beneficiary of a prior will, you believe that the will-maker did not have capacity to make a later will (or perhaps I should say alleged will), but you do not fall within one of the categories of people entitled to notice? It would appear that because of this restriction, you cannot simply file a notice of dispute, despite the fact that you have an interest in challenging the later will. This restriction was pointed out to me by my friend and colleague Michelle Rosser, who is also one of the lawyers in the case I will refer to shortly.

If you are not within a category of people entitled to notice, you may apply to court add you as a person entitled to notice under Rule 25-2 (14)(a), which says:

Court may alter or dispense with notice

On application, the court may do one or both of the following to avoid any prejudice that would otherwise result to the intended applicant, to another person or to the estate:

(a) vary the classes of persons to whom documents referred to in subrule (1) are to be delivered;

….

If the court makes the order, then as a person entitled to notice, you may then file a notice of dispute.

This is what Ms. Rosser and her client did in the first reported case dealing with this issue: Re Dow Estate, 2015 BCSC 292.

Dalton George Dow named Joanne Golos as a beneficiary in a will he made in February 2013, but not in a later will made in April 2014, which I will refer to as the 2014 Will. Ms. Golos questioned whether Mr. Dow had the necessary capacity to make the 2014 Will and whether he was unduly influenced by others to cut her out. She wished to file a notice of dispute so that she would have an opportunity to investigate the merits of her claim before the named executor of the 2014 Will received probate, and potentially distributed the estate, thereby defeating her claim.

But Ms. Golos was not an executor or beneficiary of the 2014 Will, nor would she receive a share of Mr. Dow’s estate if he had left no will.

Ms. Golos applied under Rule 25-2 (14)(a)to be added as a person to whom Mr. Cosar had to give notice so that she would have the right to file a notice of dispute. Mr. Cosar argued that there was no merit to her claim, and that the effect of allowing her to file a notice of dispute was to tie up the estate for up to a year or longer.

Master Harper heard the application, and granted the order adding Ms. Golos as a person to whom Mr. Cosar had to give notice of his application to probate the 2014 Will, thereby allowing her to file a notice of dispute. Master Harper held that it was not appropriate to consider the merits of Ms. Golos’ claim. The issue was whether there was prejudice to Ms. Galos if she were not added as a person to whom notice had to be given. The Master found that there would be prejudice to Ms. Golos if she did not make the order. Master Harper wrote at paragraph 15:

[15]         The applicant has met the threshold required by Rule 25-2(14). There is a risk that if she is not included in the class of persons entitled to receive information about the estate and to file a notice of dispute, she will be prejudiced. The prejudice is the risk that Mr. Cosar will be granted probate and the estate will be distributed before the applicant’s claim can be assessed. That prejudice outweighs the possible delay in the distribution of the estate.

This decision is surely correct, but begs the question, why was this restriction on notice of disputes made in the first place? Before the rule changed, any person with an interest in the question of whether a will was valid could file a caveat. Now someone in Ms. Golos position must first make an application to court, significantly adding to the expense of disputing the will.

What if Ms. Golos had not been successful, and probate issued? She could still have applied to court to revoke the grant of probate on the grounds that Mr. Dow did not have capacity or that he was unduly influenced. Once the application is filed, the executor would be required to return the original grant to the court registry pursuant to Rule 25-5 (5)(b). The executor would have been put through the cost of applying for the grant, only to have to return it, pending resolution of the litigation. The result would be further costs, and delay.

I note that restricting the right to file a notice of dispute to those entitled to notice of the probate application was not one of the recommendations made in the British Columbia Law Institute Report on New Probate Rules, on which many of the new rules were modeled. I assume someone in government thought this restriction a good idea, but I cannot see any benefit to this restriction, and the Rule should be amended to allow anyone with an interest under a previous will to file a notice of dispute, whether or not he or she would be entitled to notice of the application for an estate grant.

Davies Estate -- Evidence that Notice of Application of Estate Grant Given At Least 21 Days Before Submission Filed

One of the changes in procedure in the new probate rules is that when you apply for an estate grant in British Columbia, you now have to give notice to beneficiaries and those who would be entitled to a share of the estate if the deceased had died without a will at least 21 days notice before filing for the estate grant, unless the court orders otherwise.

The requirements are set out in Rule 25-2. Rule 25-4(2) provides that the registrar must not issue an estate grant unless notice has been given in accordance with Rule 25-2.

You may prove delivery by swearing and filing an affidavit in Form P9. Interestingly, the form does not say when the notice was delivered.

The delivery requirements are considered in a recent decision of Master Caldwell in Davies Estate, 2014.

In that case the affidavit of notice was sworn four days before the application, and Master Caldwell refused to issue a grant. The applicant argued that because the deceased died before March 31, 2014, when the new Rules and the Wills, Estates and Succession Act came into effect, the old Estate Administration Act notice provisions applied, and the applicant did not need to give the 21 days advance notice.

Master Caldwell rejected the submission that the new rules did not apply. (As an aside, I note that although the new rules are in effect for all applications made on or after March 31, 2014, most of the substantive provisions of the Wills, Estates and Succession Act will only apply if the deceased died on or after March 31, and the substantive provisions of the Estate Administration Act, such as the distributions if the deceased died intestate, will still apply if the deceased died before that date.)

In order to assist the bar and others applying for estate grants, Master Caldwell issued reasons in which he discussed evidence that the 21 days have passed before the application for an estate grant is made as follows:

[11]         Form P9 is the form which provides the registrar with evidence as to who received notice of the application and of what that notice consisted. Nowhere in the standard Form P9 is there specific reference to when notice was delivered, however, that does not reduce the duty on the registrar to be satisfied that proper 21 day notice has been provided.

 [12]         The absence of express evidence of the date of delivery is not fatal in itself. The Form P9 may well be silent in its body as to the date of delivery but may have been sworn 21 or more days before the application was submitted. In such case, as long as the list of enumerated persons correctly identifies the persons entitled to notice, the registrar may properly infer adequate notice and process the application for the estate grant. In situations where that Form P9 is sworn less than 21 days before the filing of the application the inference is not available and sufficient evidence as to the date of delivery must be provided in order that the registrar may be satisfied as to observance of and compliance with Rule 25-2. Where such evidence satisfies the registrar that proper 21 day notice was given before the application was filed, the matter may be processed based on the original application date; where the evidence fails to establish that 21 day notice was given before the application was filed the original application cannot be remediated and must be resubmitted following a proper 21 day notice period, established by proper evidence.

Accordingly, it is best to swear the affidavit as soon as the delivery is made so that it is clear to the registrar that the applicant has complied with the 21 day notice requirement. If the affidavit is sworn later, consider adding in the date the delivery was made.                                                                                                        

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.”

Notice of Dispute

In British Columbia, under the new probate rules, if you wish to dispute the validity of a will, and oppose a grant of probate or of administration of the will, you may file a notice of dispute before the Supreme Court of British Columbia issues the grant.

The procedure is set out under new Rule 25-10, which came into effect on March 31, 2014 with the new Wills, Estates and Succession Act.

The notice of dispute, replaces caveats under the old rules, and are similar but not identical to caveats. I wrote about caveats here. 

In contrast to caveats, you may only file one notice of dispute, but it remains in effect for one year (rather than 6 months) unless removed.

The Registrar may not issue a grant, an authorization to obtain estate information, or reseal a foreign grant while a notice of dispute is in effect.

The “disputant” may withdraw a notice of dispute by filing a withdrawal in form P 30. The old rules did not prescribe a form for withdrawing a caveat in estates, although the form prescribed for withdrawing caveats in admiralty proceedings was sometimes used.

You may also apply to court to renew the notice of dispute under Rule 25-10 (7).

Any person interested in the estate may apply under Rule 25-10 (10) to court to remove a notice of dispute, and the court may do so “if the court determines that the filing is not in the best interests of the estate.” This is set out in Rule 25-10 (11).