Report on New Probate Rules
Probate Rules concerns reform of the rules of court relating to probate and administration of estates in British Columbia. It is a necessary sequel to the Succession Law Reform Project which BCLI completed in 2006. It s intended in part to implement procedural recommendations made in the Final Report for that project. The Probate Rules Revision Project is funded by the Ministry of Attorney General of British Columbia.
The British Columbia Law Institute
This report results from the Probate Rules Reform Project undertaken by the British Columbia Law Institute (BCLI) with the support of the Ministry of Attorney General.Two major legal developments led to the Probate Rules Reform Project. The first was the enactment of the Wills, Estates and Succession Act (WESA) in 2009. Changes to the rules of court dealing with probate business are needed before the WESA can be brought into force. The second development was the general reform of the rules of the Supreme Court of British Columbia that culminated in the Supreme Court Civil Rules (Civil Rules). The former Rules 61 and 62 could not be given a high priority for revision in that process and appear largely unchanged as Rules 21-5 and 21‐4, respectively, in the Civil Rules. Comprehensive revision of Rules 21-4 and 21-5 was needed to accommodate the WESA and modernize the probate process in keeping with the spirit of the Civil Rules.
The Project Committee’s approach to reform of the probate rules was fourfold. First, there would be an attempt to design an optimal procedure instead of simply improving on the existing one. Second, aspects of probate procedure that have outlived their usefulness would no longer be retained simply for historical reasons. Third, in recognition of the fact that unrepresented persons initiate much probate business, procedures would be simplified where possible. The revised probate rules would provide more explicit guidance than Rules 61 and 62 now do. Fourth, differences between procedures in probate matters and general civil procedure as remodeled under the new Civil Rules would be harmonized to the extent possible.
Part One of the report explains the background to the procedural reforms that the new probate rules intended to replace Rules 21‐4 and 21‐5 would introduce. Part Two contains the recommended new probate rules and commentary on them. Following the general format of the Civil Rules, the new probate rules take the form of subrules grouped under one principal rule. The numbering of that principal rule is left to the decision of the Supreme Court Rules Revision Committee. As the new rules abandon the present contentious / non‐contentious classification of probate business, division of the subrules between two principal rules of court was not seen as necessary.
The new probate rules in Part Two are intended to accommodate a system in which a single court file for the estate would be opened when the first filing (typically an application for a common form grant) is made. Subsequent proceedings that currently must be pursued in separate actions with different court files and file numbers, such as probate in solemn form and revocation, would be initiated instead by interlocutory application within the same estate file. The relatively rare cases in which a proceeding for probate in solemn form is begun before any other step has been taken in the estate, such as an application for a common form grant, would be exceptions. In those cases, the proceeding would commence by petition. The procedure in contested matters would be only as elaborate as necessary to resolve the particular matter, ranging from an ordinary chambers argument to summary trial on affidavits to a regular civil trial with oral evidence. This is seen as serving the principle of proportionality embraced by the Civil Rules.
Among the other significant changes to probate procedure proposed in this consultation paper are the following:
- a 21 day notice period that must elapse between the notice of an intended application for a grant of probate or administration and the filing of the application;
- a single application form for a grant or resealing, comprising the information now found in the applicant’s affidavit and the disclosure document concerning the deceased, the last will if any, and the deceased’s estate;
- abolition of the need to “clear off” potential administrators having equal or prior right to a grant;
- provision for an application to remove a caveat;
- provision for new procedures at the probate stage contemplated by the Wills, Estates and Succession Act, such as curative orders to admit wills to probate despite formal defects, rectification of wills and upholding of gifts to attesting witnesses in some circumstances;
- deletion of the schedule of proposed distribution from an application for a grant or resealing;
- disclosure of debts in an application for a grant or resealing would be limited to debts encumbering specific assets;
- discontinuance, consent dismissal, and settlement without leave of the court would be permitted in contested probate proceedings as in other civil matters, and default judgment would be possible except in proceedings for revocation;
BCLI believes the new probate rules set out in this report will modernize and simplify probate procedure in keeping with the objects of the new Civil Rule.