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.
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