Saturday, July 06, 2019

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.

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