Probate & Estate Administration

Probate: Distribution of Estate When There Is A Will

As of May 2014, the Wills, Estates and Succession Act is the law, having replaced all of the Estate Administration Act, Probate Recognition Act, Wills Act and the Wills Variation Act.

The grant of Probate is a Court Order from the Supreme Court of British Columbia that allows the person who receives it to step into the shoes of the deceased with respect to the management of their affairs and the distribution of their assets.

A grant of Probate is available when there is a Last Will and Testament (the “LW&T”). The LW&T will name an executor and that person has the right to apply to the Supreme Court of British Columbia for the grant of Probate. If that person is deceased and an alternate executor is named then the alternate executor has the right to apply for the grant of Probate. If there is no alternate executor named, then the right to apply for the grant would fall firstly to the spouse of the deceased and then to his/her children. It is possible that if there is more than one child who wants to apply for the grant of Probate that they would have to either apply together, attend to renunciations of the right, or get a Court Order to sort out who will apply if they do not agree.

Irrespective of the situation we can advise and assist with the process and application.

Intestacy & Estate Administration: Control and Distribution of Estate When There is No Will

When there is no Last Will and Testament (“LW&T”) you have what is called an Intestacy. This means that instead of the LW&T determining the executor, there will be an “Administrator”. Also and instead of the LW&T determining who gets what assets, the distribution will be determined by the Wills, Estates and Succession Act (“WESA”)

Pursuant to section 130 of WESA the appointment of administrator will firstly be given to a spouse and if none (or the spouse declines) then the child of the deceased having the consent of the majority of their children.

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Where the previous Estate Administration Act used to govern and determine who got what in the event of an intestacy (deceased passes without a will), this is now governed by sections 20 through 25 of the Wills, Estates and Succession Act.

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The Wills, Estates and Succession Act implements a parentelic system of distribution in the event of intestacy. Under this system:

(a) descendants of the nearest common ancestor always come before descendants of a more distant ancestor;

(b) distributions are more likely to be divided between the two sides of a deceased family;

(c) the need to find and provide notice to more distant relatives is diminished.

Unfair Treatment of Children and/or Spouses: When there is a Will

The provisions of the previous act have been incorporated into the new Wills, Estates and Succession Act, in which statute allows a child or spouse to ask the Supreme Court of British Columbia to vary a will if the will does not make provision for them in a manner that is “just and equitable in the circumstances”. British Columbia’s aging population is bringing wills to the forefront of our collective mindset; wills are crucial tools in an estate plan, but can often lead to conflict if a parent does not make adequate provision for their children.

There is a complex array of case law that can be used to determine exactly what allocations would be considered to be “just and equitable in the circumstances”. For example, it might be acceptable to disinherit a child because you had to sue them to collect on a debt but not acceptable to disinherit them simply because they are wealthier than you and your other children.

The treatment of spouses, especially from second marriages where there are children involved, has been a frequent subject of litigation. In almost every instance it would not be acceptable to the Courts that a spouse be disinherited. Now, with the introduction of the Wills, and Estates Succession Act, there is clear recognition of the value of the family home to a spouse irrespective of the presence of a will. The spouse now has rights far beyond what would have been imagined only 10 years ago.

Timothy Huntsman has a depth of experience working with clients who have been disinherited or unfairly treated, as well as with the executors of estates, when either their actions, or the bequests made by the deceased, are questioned.

Will Validity: Competency Issues

In an estate matter, a lawyer always starts with the presumption of competency. This means that someone is presumed to be competent until they are deemed to be incompetent to make a will.

The test for testamentary capacity is set out in the court decision of Banks v. Goodfellow. In a nutshell, the will maker has to understand the nature of their assets, understand the moral claims that others might have to them, and not be afflicted by a disease of the mind that negatively affects their perspective on one or more people.

Timothy welcomes potential clients who believe that a will maker did not have testamentary capacity when they executed a will. Although this sort of dispute can be an uphill battle, it is possible to displace a more recent will in favour of an older will if it can be shown that the will maker did not have testamentary capacity at the time of the making of the new will.

Probate and Administration – Cost of the Application

Although this may vary somewhat depending on the complexity of the LW&T or Intestacy, the number of beneficiaries, any issues of consent / renunciation, and the cost of sending out the all Notices of the Application to all those entitled to receive Notice of the Application, we will typically charge between $2000.00 and $3,000.00 in legal fees for the application to the point of getting the Grant of Probate or the Letters of Administration.

It should be noted that there are court filing fees, courier charges, taxes on legal fees and also the probate fees charged by the government that are additional to the aforementioned quote.

Usually clients take over management of the Estate once we have obtained the Grant of Probate of the Letters of Administration, however, we can help out beyond that stage if asked.


Rectification of the Last Will and Testament – Curing Deficiencies

Section 58, the curative provision of the Wills Estates and Succession Act (“WESA”) is intended to enable the clearly intended wishes of the Deceased to be given effect. That section of the WESA can be found by following this link:

Before the WESA there was no mechanism to fix errors or enable clearly stated wishes that were not in the LW&T to be given effect. The rules were rigid and often resulted in wishes not being carried out especially if there was an error in execution.

The Supreme Court of British Columbia in the decision of the Herod Estate (Re) found that the curative provisions do not allow for an unsigned LW&T to be given effect partly because “To make an order under s. 58, the court must be satisfied that the record or document in question represents the testamentary intention of the deceased person.” Where the LW&T was unsigned or initialed it did not meet this threshold.

The curative provisions could be used to remedy spelling mistakes, errors in a name, allow for documents to substitute or add to the LW&T, and all this if there is also defect in the manner that the document was executed.

The British Columbia Court of Appeal in Hadley Estate (Re), 2017 BCCA 311 (CanLII) sets out the law starting at paragraph 35 . For ease of reference the relevant section of Hadley estate (Re) is set out below:

[35]        For an order to be granted under s. 58 of the WESA, the court must be satisfied that a document represents the testamentary intentions of the deceased person.  However, unlike the curative provisions in some provinces, s. 58 does not require a minimum level of execution or other formality for a testamentary document to be found fully effective.  Regardless of its form, if the court grants an order under s. 58(3), the document may be admitted to probate.

[36]        As discussed in Estate of Young, s. 58 is very similar to Manitoba’s curative provision and thus the leading appellate authority on its meaning is George v. DailyGeorge and several other Manitoba authorities are reviewed in Estate of Young, which review need not be repeated.  Their import is summarized at paras. 34–37:

[34]      As is apparent from the foregoing, a determination of whether to exercise the court’s curative power with respect to a non-compliant document is inevitably and intensely fact-sensitive.  Two principal issues for consideration emerge from the post-1995 Manitoba authorities.  The first in an obvious threshold issue:  is the document authentic?  The second, and core, issue is whether the non-compliant document represents the deceased’s testamentary intentions, as that concept was explained in George.

[35]      In George the court confirmed that testamentary intention means much more than the expression of how a person would like his or her property to be disposed of after death.  The key question is whether the document records a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death.  A deliberate or fixed and final intention is not the equivalent of an irrevocable intention, given that a will, by its nature, is revocable until the death of its maker.  Rather, the intention must be fixed and final at the material time, which will vary depending on the circumstances.

[36]      The burden of proof that a non-compliant document embodies the deceased’s testamentary intentions is a balance of probabilities.  A wide range of factors may be relevant to establishing their existence in a particular case.  Although context specific, these factors may include the presence of the deceased’s signature, the deceased’s handwriting, witness signatures, revocation of previous wills, funeral arrangements, specific bequests and the title of the document:  Sawatzky at para. 21; Kuszak at para. 7; Martineau at para. 21.

[37]      While imperfect or even non-compliance with formal testamentary requirements may be overcome by application of a sufficiently broad curative provision, the further a document departs from the formal requirements the harder it may be for the court to find it embodies the deceased’s testamentary intention:  George at para. 81.