Sabey Rule Blog

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

By October 10, 2017 No Comments

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. However, I am concerned that the proposed changes may leave some gaps. For example, if the executor has not probated the will, but wishes to seek approval of her accounts or her remuneration from the court, how does she make the application? Perhaps she may be able to do so under Rule 2-1 (2), but it is not clear to me. It would be preferable to provide that a proceeding may be commenced by petition if there has not been an application for an estate grant. There could then be exceptions carved out for bringing certain  applications by requisition.

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