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Guide to Wills and Estates Section III B-4 1

MISCELLANEOUS

INDEX ...............................................................................................................................Page

Dispensing with Notice (Section 112 Estate Administration Act) Procedure ..................................................................................................... 2 Affidavit in support of Order .................................................................................4 Order dispensing with Notice ................................................................................6

Proof of a (photo)copy of a Will Procedure........................................................................................................... 7(a) Order ................................................................................................................. 7(c)

Proof of a notarially certified copy of Will from foreign jurisdiction Procedure ...............................................................................................................9 Order ....................................................................................................................10

Supplementary Affidavit (with respect to Statement of Assets, Liabilities and Distribution) ................................ 12

Bonding Procedure .............................................................................................................14 Order ..................................................................................................................18

Resealing a Foreign Grant Procedure .............................................................................................................20 Affidavit to lead to Resealing of Grant - Form 105 ............................................24 Order ....................................................................................................................28

Cancelling a Bond Procedure .............................................................................................................30 Release and Indemnity ........................................................................................32 Affidavit of Administrator ...................................................................................36 Requisition ...........................................................................................................38 Order ....................................................................................................................40

Caveats Explanation ..........................................................................................................42 Procedure .............................................................................................................43 Caveat – Form 97 ................................................................................................44 Notice to Caveator – Form 98 .............................................................................46

Death of Personal Representative after Grant before completion of Administration of Estate

Explanation ..........................................................................................................48 Sole or Last Surviving Personal Representative Dies – Chain of Executorship ..50 Second Grant – Alternate Named in the Will ......................................................51 Administration de Bonis Non...............................................................................56

Letters of Administration by Attorney Explanation and Procedure ..................................................................................63 Power of Attorney ...............................................................................................66 Affidavit of Administrator ...................................................................................68 Order.......................................................................................................... 70

2 ESTATES Applications – Miscellaneous Guide to Wills and Estates

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DISPENSING WITH NOTICE (Section 112 of the Estate Administration Act)

PROCEDURE

Sometimes, the whereabouts of a person entitled to Notice pursuant to Section 112 of the Estate Administration Act are unknown. The missing person may be:

a beneficiary named in the Will;

a person entitled to apply under the Wills Variation Act (i.e. spouse or child of the Deceased); or

an heir-at-law (i.e. a person entitled to Notice on an intestacy or partial intestacy – see Section III A-1 Intestacy Explained).

After all efforts to locate the missing person have proved unsuccessful, an Order dispensing with such Notice may be sought. In other words, the Court may order that it is not necessary to mail the Notice to the missing person. This is done at the time of the application – either for Letters Probate or Letters of Administration.

Two documents have to be prepared and filed in addition to the usual documents required for an application (Letters Probate or Letters of Administration):

Affidavit in support of the Order. This Affidavit sets out the circumstances and the efforts made to locate the missing person; and

Order.

In addition, changes should be made in the following documents forming part of the application:

Requisition; and

Affidavit pursuant to Section 112 of the Estate Administration Act.

Changes to the Requisition (Form 17)

In the first section (“Required”), the following words should be added as the last item:

“Order dispensing with Notice pursuant to Section 112 of the Estate Administration Act.”

In the second section (“This Requisition is supported by the following:” – listing the documents submitted to the Registry with the application), the description of the supplementary affidavit filed must be inserted:

“Affidavit No. (number) of (name) made (date) in support of the application for an Order dispensing with Notice pursuant to Section 112 of the Estate Administration Act”.


Changes to Section 112 Affidavit

The following words should be added to show the exception at the end of those paragraphs in the Affidavit where the applicant lists the persons entitled to Notice:

“...except (name of the missing person) who is a (son/daughter/ brother/sister, etc. of the Deceased) whose whereabouts are unknown and an Order dispensing with Notice to the said (name of the missing person) is being sought pursuant to the Affidavit of (name) sworn the ____ day of _________, 20__, and filed.”

Generally, these words must be added after the following paragraphs where the persons entitled to Notice are listed:

In the case of Letters Probate or Letters of Administration with Will Annexed:

if the missing person is one of the beneficiaries named in the Will of the Deceased, they are inserted at the end of the second paragraph which reads:

“I have mailed a Notice, a true copy of which ... to each of the following who are, to the best of my knowledge beneficiaries...”

if the missing person is the spouse or a child of the Deceased, or a person entitled to share in the estate on an intestacy or partial intestacy, or entitled to apply under the Wills Variation Act, the above are inserted at the end of the third paragraph which reads:

“I have also mailed the Notice, ... who are entitled to apply under the Wills Variation Act ... or who would be entitled to share in the estate on an intestacy or partial intestacy...”

In the case of Letters of Administration:

they are inserted at the end of the second paragraph, which reads:

“I have mailed a Notice ... to the following heirs-at-law who, to the best of my knowledge, are the only persons entitled on an intestacy or partial intestacy...”

If, in addition to the paragraph setting out the above exception, the name of the missing person should have been listed anywhere else in the Affidavit where the family situation is explained, the following words should be added:

“save and except (name of the missing person) as stated above”.



DISPENSING WITH NOTICE (Section 112 of the Estate Administration Act)

AFFIDAVIT IN SUPPORT OF ORDER General Notes

This Affidavit (see Procedure above) is sworn in support of the Order described on the following pages.

Preparation

The style of proceeding must be identical throughout all documents. The number is left blank (see Section III A-1 Ascertain style of proceeding).

If there are several applicants, it is only necessary for one of them to swear this Affidavit and paragraph 2 should read: “I am one of the applicants...”.

An explanation should be provided as to the reason why the missing person is entitled to Notice. For example: “(name of the missing person) is: a beneficiary named in the Will of the Deceased dated ...; or spouse/son/daughter of the Deceased and as such entitled to Notice under the Wills

Variation Act; or a brother/sister/other relation of the Deceased and as such entitled to share in the estate

on an intestacy or partial intestacy”.

The circumstances of the person’s disappearance should be set out in detail. This information should be elicited from the applicant, and then dictated by the supervising lawyer, e.g.: when the person was last seen by the applicant, or a family member of the Deceased; when the applicant (or a family member) was last in contact with the missing person

and the circumstances of such contact; when the person left the city/province/country.

The supervising lawyer should advise the applicant as to the steps to locate the missing person. When the applicant has exhausted all avenues to locate the person, he or she will report the efforts to the supervising lawyer who will dictate this paragraph describing the efforts made to locate the missing person. Of course, the circumstances vary with each situation but some common steps are: check the telephone directory(ies) in the city where the missing person is believed to

have last resided or search name on the internet; enquire of relatives, friends and acquaintances of the Deceased as well as those of the

missing person; advertise for the missing person in a newspaper circulating in the location where he or

she resided; engage the services of a private detective; search Vital Statistics Registry; search the Deceased’s personal papers and records for any information concerning the

missing person.

Processing

The Affidavit must be properly dated and sworn before a lawyer.

This Affidavit (together with the Order on the next pages) is filed with the other documents in support of an application for Letters Probate or Letters of Administration (see instructions for each application).


This is the (1st/2nd) Affidavit of (Name) in this case and

was made on (date)

No.__________________ VANCOUVER REGISTRY

IN THE SUPREME COURT OF BRITISH COLUMBIA

RE: ESTATE OF (NAME OF THE DECEASED, WITH ALL ALIASES), DECEASED

AFFIDAVIT

I, (NAME OF THE EXECUTOR/ADMINISTRATOR), (occupation), of (residential

address), in the (City) of _______________, in the Province of British Columbia, SWEAR/

AFFIRM THAT:

1. I am the applicant for Letters Probate of the Will of the Deceased dated

____________, 20__ (or: for Letters of Administration of the estate of the Deceased).

2. I have not mailed a Notice in the form prescribed by Section 112 (6) of the Estate

Administration Act (the “Notice”) to (name of the missing person) who is ...

3. Despite numerous efforts, I have been unable to contact (name of the missing

person) or obtain his/her address.

4. I have made the following efforts to locate (name of the missing person) ...

5. I swear this Affidavit in support of my application for an Order dispensing with mailing

of the Notice to (name of the missing person).

SWORN/AFFIRMED BEFORE ME at the (City) of _________, Province of British Columbia, this ___ day of_________, 20___ A Commissioner for taking Affidavits in British Columbia

)))))))))

(NAME OF ADMINISTRATOR/ ADMINISTRATOR)



DISPENSING WITH NOTICE (Section 112 (3) of the Estate Administration Act)

ORDER

General Notes

For a discussion as to when this Order is applied for, see Procedure on the previous pages.

Preparation


The date should be left blank. It will be completed by the Probate Registry when the Order is signed.

The reason why a person is entitled to notice should be shown here (see Affidavit in support). For example, insert whether the missing person is:

a beneficiary under the Will of the Deceased; or

spouse/son/daughter of the Deceased and as such would be entitled to apply under the Wills Variation Act; or

(relationship to the Deceased) and as such entitled to Notice on an intestacy or partial intestacy.

Processing

This Order (together with the supporting Affidavit) forms part of an application for Letters Probate or Letters of Administration and is filed concurrently with the other documents.





ORDER MADE AFTER APPLICATION

) THE HONOURABLE JUSTICE ____________ ) ) or A JUDGE OF THE COURT ) ) or ) ) MASTER (name) _______________________ )

BEFORE

) or A MASTER OF THE COURT )

______________

ON THE APPLICATION of (NAME OF EXECUTOR/ADMINISTRATOR):

coming on for hearing at (location) on (month, day, year) and on hearing (name of party/lawyer) and (name of party/lawyer);

without notice coming on for hearing at (location) on (month, day, year) and on hearing (name of party/lawyer);

without a hearing and on reading the materials filed by (NAME OF LAWYER FOR ESTATE)

THIS COURT ORDERS that:

1. the necessity of mailing or delivering the notice required by Section 112 (1) of the Estate Administration Act to (NAME OF THE MISSING PERSON) who is be and the same is hereby dispensed with.

THE FOLLOWING PARTIES APPROVE THE FORM OF THIS ORDER AND CONSENT TO EACH OF THE ORDERS, IF ANY, THAT ARE INDICATED ABOVE AS BEING BY CONSENT:

______________________________ Signature of

party lawyer for (name(s))

BY THE COURT

Registrar


PROOF OF NOTARIALLY CERTIFIED COPY OF WILL FROM FOREIGN JURISDICTION

PROCEDURE

In some circumstances only a notarially certified copy a foreign(1) Will is available. For example, the original may have been filed in the foreign court, or is retained by the notary in that jurisdiction. In such a case, the notarial copy of the Will is allowed to be probated in British Columbia (see Section 41 of the Evidence Act).

In addition to the usual documents filed in support of an application for Letters Probate (or Letters of Administration with Will Annexed), an Order is sought (in the form set out on the following pages) and some changes should be made in the following documents forming part of application.

Note: Notaries in the Province of Quebec do not release the original Will which is retained by them and forms part of the notary’s official “deeds”. When a person dies, the notary provides only a notarially certified copy (or a “notarial copy”) of the Will. In other words, the original Will, once executed, never leaves the notary’s office. However, S. 36(1) of the Canada Evidence Act provides that such a copy has the same force and effect as the original. When submitting a notarial copy of a Quebec Will for probate, whenever the word “original Will” appear, they should be replaced with the words “notarial copy of a Quebec Will”.

Change to the Requisition (Form 17)

In the first section (“Required”), the following words should added as the last item:

“Order of proof of notarially-certified copy.”

Changes in Affidavit of Executor (Forms 91 or 93)

The third paragraph of the Affidavit which describes the Will should be changed to read:

“Now produced and shown to me and marked Exhibit “A” to this Affidavit is what I believe to be a notarially-certified copy of the Deceased’s original last Will which is dated _____ day of ____________, 20__, certified by (name of notary or official in the foreign jurisdiction) of the City of (City), Province of (Province), who retains the original according to the laws of (jurisdiction).”

(1) The reference to “foreign” here means any jurisdiction outside British Columbia, including another province

of Canada.



PROOF OF NOTARIALLY CERTIFIED COPY OF WILL FROM FOREIGN JURISDICTION

ORDER

General Notes

For a discussion as to when this Order is applied for, see Procedure on the previous page.

Preparation



The name of that jurisdiction should be inserted.

Processing

This Order (together with the supporting Affidavit) forms part of an application for Letters Probate or Letters of Administration with Will Annexed and is filed concurrently with the other documents.






) THE HONOURABLE JUSTICE ____________ ) ) or A JUDGE OF THE COURT ) ) Or ) ) MASTER (name) _______________________ )

BEFORE


______________

ON THE APPLICATION of (NAME OF EXECUTOR):



without a hearing and on reading the materials filed by (name of party/lawyer) and (name of party/lawyer);


1. probate of a notarially-certified copy of a Will of (NAME OF THE DECEASED, WITH ALL ALIASES), Deceased, dated the ______ day of _______________, 20___, be granted to (NAME OF EXECUTOR), the Executor named in the Will.


______________________________ Signature of


BY THE COURT

Registrar



SUPPLEMENTARY AFFIDAVIT (with respect to Statement of Assets, Liabilities and Distribution)

General Notes

It may happen that, after filing the documents in support of an application for Letters Probate or Letters of Administration and obtaining the Grant, the following are discovered: another asset; or a liability (i.e. debt); the value of an asset was over-estimated or an asset was reported twice; or an error in the description of an asset.

As the applicant has sworn in the Affidavit of Executor to: “... disclose forthwith to the Court the existence of any asset or liability which has not been disclosed in Exhibit “A” (or “B”) when I learn of same ...”,

a Supplementary Affidavit must be prepared, and filed. If there is an increase in the estate’s value, the additional fee resulting from such increase must be paid when the Affidavit is filed. The fee is calculated at the rate in effect at the time of the original filing. On the other hand, if there is a reimbursement, a refund of the overpayment may be requested when the Affidavit is filed.

Preparation

The style of proceeding must be identical throughout all documents. The number should be copied from documents previously filed in the Probate Registry.

The Supplementary Affidavit may be sworn by either the:

supervising solicitor; or

Executor or Administrator (or one of them, if there were several),

so paragraphs which apply should be inserted.

In the case of Letters of Administration (with Will Annexed), the words “the Executor(s) of the Will...” should be replaced with “Administrator(s) of the Estate...”.

In the case of Letters of Administration (with Will Annexed), the words “Letters Probate” should be replaced with “Letters of Administration (with Will Annexed)”.

This paragraph is used where additional assets have been discovered. Therefore, the description and the value of the assets (now being disclosed) must be set out in the manner as required in the Statement of Assets, Liabilities and Distribution.

Where the Affidavit is being used to correct the Statement in another way (such as to correct a legal description of an asset), the appropriately worded paragraph should be inserted to suit the situation.

Processing

The original Statement of Assets, Liabilities and Distribution should be amended by copying into it the additional information (or corrections), and recalculating the totals. The new Statement should have the words “amended” typed across the first page.

The Affidavit must be properly dated and sworn before a lawyer who should date and sign the Exhibit portion of the Statement.

If there is an increase in the gross value of the estate, and accordingly, an increase in probate fees (see Section IV Fees) a certified cheque payable to the Minister of Finance for the additional amount should be obtained from the client.

This Affidavit must be filed with a Requisition. Copy one of the Requisitions in Section III, delete all information in “Required” and type “N/A”. Under “Herewith” type “Supplementary Affidavit No. (number) of (name) made (date) and “cheque payable to the Minister of Finance for the additional probate fees”.

For a refund, under Required, type: “Refund of $__, being overpayment of probate fees paid on (date) and attach the original receipt for payment of probate fees.


This is the (1st/2nd) Affidavit of

(Name) in this case and was made on (date)



RE: ESTATE OF (NAME OF DECEASED, WITH ALL ALIASES), DECEASED

SUPPLEMENTARY AFFIDAVIT

I, (NAME OF EXECUTOR/ADMINISTRATOR/SOLICITOR), (occupation), of (residential address), in the (City) of _____________, Province of British Columbia, SWEAR/ AFFIRM THAT:

(where the Solicitor for the Executor is swearing the Affidavit, these paragraphs should be inserted)

1. I am a Partner/Associate with the firm of __________ and am the solicitor for (NAME), the Executor of the Will of (NAME OF DECEASED, WITH ALL ALIASES), Deceased.

2. A Grant of Letters Probate was issued to the said (NAME) by the Probate Registry of the Supreme Court of British Columbia at (City) on (date).

3. Since preparing the Statement of Assets, Liabilities and Distribution attached to the Affidavit of (NAME OF APPLICANT) sworn the (date), and filed, I have learned of additional assets which were not disclosed in the said Statement of Assets, Liabilities and Distribution as follows:

and accordingly, I have prepared an amended Statement which is now produced and shown to me and marked Exhibit “A” to this my Affidavit, which includes such additional assets.

(or: where the Executor is swearing the Affidavit, these paragraphs should be inserted)

1. I am the Executor of the Will of (NAME OF DECEASED, WITH ALL ALIASES), Deceased, pursuant to a Grant of Letters Probate issued to me by the Probate Registry of the Supreme Court of British Columbia at (City) on (date).

2. Since preparing the Statement of Assets, Liabilities and Distribution attached to my Affidavit sworn the (date), and filed, I have learned of additional assets which were not disclosed in the said Statement of Assets, Liabilities and Distribution as follows:

and accordingly, I have prepared an amended Statement which is now produced and shown to me and marked Exhibit “A” to this my Affidavit, which includes such additional assets.

SWORN BEFORE ME at the (City) of _________, Province of British Columbia, this ___ day of_________, 20___ A Commissioner for taking Affidavits in British Columbia

) ) ) ) ) ) )

(NAME OF PERSON SWEARING AFFIDAVIT)



BONDING PROCEDURE

The steps set out below are in addition to the steps and procedure for applications for Letters of Administration without bond. Supreme Court Civil Rules govern the form of the bond.

Obtain an application for a bond

An application for a bond can be obtained by telephoning an insurance broker (or agent). The broker will, in turn, obtain an application from the insurance company (or surety underwriter) and forward it to the law firm. However, in reality, the administrator should arrange to obtain the bond.

Each company has its own form of application which requests information regarding: the applicant (to determine the bondability); the Deceased; and the estate.

The prospective administrator should be provided with the application form for information gathering and review. The form cannot be finalized until the Order has been obtained (see below).

Ensure that the prospective administrator is bondable

The insurance company will evaluate the qualifications of the bond applicant (prospective administrator) in a manner similar to that used by a bank to evaluate the credit worthiness of an applicant. The underwriter will require references, as well as information regarding employment record, permanent residence, and assets and liabilities of the applicant. The underwriter will then investigate the information provided. In addition to being bondable, the administrator must disclose a lot of personal information that he or she may be reluctant to do.

If the supervising lawyer has any doubts as to whether the prospective administrator is bondable, it is wise to ascertain that this is, in fact the case. The supervising lawyer may want to discuss the situation with the insurance company from which an application has been obtained.

Prepare supporting documentation

Before preparing any documents, ascertain that the applicant is bondable.

See Sections III B-2 or B-3 for the preparation of the documents to apply for Letters of Administration (or Letters of Administration with Will annexed) without bond, which are identical to an application with bond, except for the Order which is set out below.

Prepare and mail letter to the Public Guardian and Trustee of British Columbia

The office of the Public Guardian and Trustee will only evaluate the situation when it receives the application documents. After examining the documents, the Public Guardian and Trustee will determine whether or not a bond is required, the amount of such bond, and advise the law office of the requirements.

Once the documents have been signed, prepare and mail Letter to Public Guardian and Trustee of British Columbia (if minors or mentally disordered persons are involved) (see Section III A-2) with all the enclosures referred to therein.

The second to the last paragraph of the letter (“We look forward to receiving your consent ...) should be changed by adding the following words “... and your recommendation as to bond.”


File the documents in the Probate Registry

The executed documents are filed with the Requisition appropriate to each application. At this time, you are just filing the documents and not requesting the Order or the Letters of Administration. Accordingly, the draft Order is not filed and, in the Requisition, under “Required”, the words “Grant of Letters of Administration” should be omitted.

The Court will process the application documents (check the contents and accuracy of each document) pending receipt of: the consent from the Public Guardian and Trustee or, if applicable, a letter outlining the

Public Guardian’s and Trustee’s recommendation regarding restriction with respect to real property if the estate consists mainly of real property or a spouse has a life estate in the real property and wishes to exercise her entitlement. These circumstances are instances where the Public Guardian’s and Trustee will explore an alternative to an administration bond whenever applicable or practical to do so.

the determination as to whether a bond is required; and if applicable, confirmation of the amount of the bond.

Apply for Order

Once the office of the Public Guardian and Trustee has evaluated the application, it will send out a letter consenting to the application and advising of the amount of the bond.

At this point: the Order should be finalized by completing the amount of the bond as directed by the

Public Guardian and Trustee; the letter from the Public Guardian and Trustee should be photocopied (the original is

filed with the second Requisition – see below – and a copy kept on file); a “second” Requisition (see form of Requisition in the appropriate sections) should be

prepared by completing the following sections in the Requisition: under “Required”, type “Order; under “The evidence in support of the application is:” insert:

“1. letter dated (date) from the Public Guardian and Trustee; and 2. draft Order.”

the second Requisition (and attached documents) should be filed in the Probate Registry.

Apply for Bond

When the Order is received from the Probate Registry, the applicant (the prospective administrator) should finalize and sign the application for bond received from the insurance company.

The signed application, together with any documents required by the insurance company, must be mailed to the insurance broker (or if instructed, directly to the insurance company) who will process the application. When the bond is approved, the insurance company will advise the broker of the amount of the fee – or premium – payable in order to obtain the bond. This fee is usually paid out of the estate assets before the bond is issued.

Once the application is processed and the premium paid, the insurance company will provide the law firm with the actual bond.



Apply for Letters of Administration

The Probate Registry will only issue Letters of Administration when it receives the bond.

In order to file the bond, a “third” Requisition (see form of Requisition in the appropriate sections) should be prepared by completing the following sections in the Requisition:

under “Required”, type “Letters of Administration”;

under “The evidence in support of the application is:” insert:

“Bond (description - company, date, number, amount)”

The third Requisition and bond should be filed in the Probate Registry.

When the Grant of Letters of Administration are issued by the Probate Registry, you can proceed to deal with the assets of the estate in the usual way.

Mail a copy of the Order and the Grant of Letters of Administration to the Office of the Public Guardian and Trustee of British Columbia

Prepare and mail a covering letter to the Office of the Public Guardian and Trustee enclosing

a copy of the Order; and

a notarially-certified copy of the Letters of Administration.

Diarize dates

Renewal date of the bond

Although each year the insurance agent will contact the Administrator directly to collect the fee (or insurance premium) payable with respect to the bond, you should also diarize the renewal date and the amount of the premium payable.

When youngest minor reaches majority

If minors are involved, the bond will expire upon the youngest minor reaching majority. The file should be brought forward to the attention of the supervising lawyer.



BONDING

ORDER

General Notes

For a discussion as to when this Order is applied for, see “Procedure” on the previous pages.

Preparation



If Letters of Administration with Will annexed are applied for, the words “with Will annexed” should be added.

If Letters of Administration with Will annexed are applied for, the word “intestate” should be changed to “testate”.

The relationship of the Administrator to the Deceased must be stated – for example: widow, son, sister, etc.

The amount of the bond as recommended in the letter received from the Public Guardian and Trustee should be inserted.

Processing

The Order should be filed with the second Requisition (see Procedure above) and the original of the letter from the Public Guardian and Trustee.







BEFORE


______________

ON THE APPLICATION of (NAME OF ADMINISTRATOR):





1. Letters of Administration of all the estate which by law devolves to and vests in the personal representative of (NAME OF THE DECEASED, WITH ALL ALIASES), late of the (City) of ____________, in the Province of British Columbia, deceased, who died on the _____ day of _______, 20__, at the (City) of ___________, in the Province of British Columbia, intestate, be granted to (NAME OF THE ADMINISTRATOR) the lawful of the said Deceased; and

2. a Bond in the amount of $ be filed in a form satisfactory to the Registrar.


______________________________ Signature of


(name of lawyer)

BY THE COURT

Registrar



RESEALING A FOREIGN GRANT

PROCEDURE

This Section deals only with applications where the personal representative appointed by the foreign Grant is applying in British Columbia (that is not by attorney). To determine when a foreign Grant can be resealed, see “Resealing a Foreign Grant” in Section III A-1.

The steps set out below rely on the information contained in Section III of the Guide with respect to applications in British Columbia, that is: what constitutes the assets of the estate, who is entitled to apply for a Grant, and who is entitled to Notice pursuant to Section 112 of the Estate Administration Act.

In this section, a Grant obtained outside of British Columbia, even in another province of Canada, is referred to as the “foreign Grant”.

Before applying for the resealing of a foreign Grant, you should ascertain the name and address of the law firm who applied for the original Grant in the foreign jurisdiction and contact them to obtain the following documents (required pursuant to Section 6 of the Probate Recognition Act):

“... a duplicate of any probate or letters of administration sealed with the seal of the court granting the probate or letters of administration, or a copy certified as correct by or under the authority of the granting court ...” (or in plain English, court-certified copies) and, in case of probate, any testamentary papers (that is Codicils and Memoranda) admitted to probate;

copies of all documents filed, such as Affidavits, Statement of Assets, etc.;

list of names and addresses of all beneficiaries and heirs-at-law;

description, location and value of all assets.

Once you have received the requisite information and the court-certified copies, have the supervising lawyer ascertain that the latter are properly certified and sealed (and comply with the requirement of the Probate Recognition Act). If they are in order, you should proceed to apply for the resealing of the Grant. The following documents should be prepared:

Search of Wills Notice

A British Columbia Will search is required to determine that you are in fact dealing with the Deceased’s last Will (i.e. the Deceased may have executed another Will after the one which was executed in the foreign jurisdiction, and may have filed a Wills Notice in British Columbia). The procedure for the search is explained in Section III A-1 of the Guide.

Notice pursuant to Section 112 of the Estate Administration Act

A Notice pursuant to Section 112 of the Estate Administration Act should be prepared and mailed – or delivered – together with a copy of the foreign Grant (with the Will attached, if there is one) to those entitled to Notice (see the three main applications in Section III B of the Guide, namely: Probate, Letters of Administration, and Letters of Administration with Will Annexed).


Affidavit of Executor (or Administrator) (Form 105)

This document leads to the resealing of the foreign Grant. It is similar to the Affidavit of Executor in Section III B of the Guide in that it:

identifies the court-certified copy of the foreign Grant (with the Will attached if the foreign Grant is a Grant of Letters Probate or Letters of Administration with Will Annexed); and

exhibits the Statement of Assets, Liabilities and Distribution (known as the Disclosure Statement).

Please note that in the case of an administration, when there are any unpaid debts, consents from each unpaid creditor are required (see Section III A-3 Creditor’s Consent).

The precedent for this Affidavit, and the explanations to prepare it are set out on the following pages.

Statement of Assets, Liabilities and Distribution (Disclosure Statement)

You should copy the information contained in the statement of assets filed in the foreign jurisdiction. All of the assets, whether in British Columbia or anywhere else, must be included. The description of the assets outside British Columbia can be copied the way it is set out in the foreign statement, but the description of the assets situated in British Columbia must comply with the instructions for any other application within the Province (see Statement of Assets, Liabilities and Distribution in Section III B-1 of the Guide). You have to show the value of all assets but only the value of the assets within British Columbia is included in the total on which the probate fees are payable (see Section IV - Fees)

The beneficiaries and their distributive share of the estate must be included in the usual manner. If the foreign Court has included a direction as to the distribution of the estate, it must be included in the Disclosure Statement.

Affidavit pursuant to Section 112 of the Estate Administration Act

This Affidavit is similar to the three Section 112 Affidavits in Section III B of the Guide with the obvious two exceptions:

the application is for the resealing of the Grant (and not Probate of the Will or Letters of Administration), and the following words should be substituted for the word “Grant”:

“... resealing a Grant of probate of the Will (or: Letters of Administration of the Estate) ...”;

wherever the word “Will” appears, the following words should be substituted:

“...the Grant of Probate of the Will (or: Letters of Administration) by (name of foreign Court) Court of (name of foreign jurisdiction)...”.



Requisition

Here again, the format of this document is similar to the Requisition corresponding to the relevant application (Grant of Letters Probate, Grant of Letters of Administration, etc.), with the following changes:

in the first section of the Requisition, under “Required”, instead of the words “Grant of ...” substitute:

“Reseal the Grant of Probate of the Will (or: Letters of Administration of the estate) by (name of foreign Court) Court of (name of foreign jurisdiction)...”

N.B. If the resealing is necessary to transfer an interest in land in British Columbia, request a court-certified copy of the resealed Grant and an office copy of the first page of the Statement of Assets, Liabilities and Distribution.

under “The evidence in support of the application is:”, show the documents filed but instead of listing the Will, insert the words “Grant of Probate of the Will (or: Letters of Administration) by (name of foreign Court) Court of (name of foreign jurisdiction)...”.

Order

The precedent for this Order, and the explanations to prepare it, are set out on the following pages.

***

Once the documents have been properly signed and sworn, they should be filed in the usual manner in the appropriate Probate Registry.

The fee is payable on the gross value of the assets within British Columbia. The gross value is the total of Part I and Part II of the Statement of Assets, Liabilities and Distribution - and remember that the debts are not deducted from the gross value for the purpose of calculating the fee.

When the foreign Grant has been resealed, it is dealt in the same manner as any other Grant obtained in British Columbia.



AFFIDAVIT TO LEAD TO RESEALING OF GRANT (Form 105 – Rule 21-5(63))

General Notes

This Affidavit is sworn by the applicant to:

identify the applicant(s) as the personal representative appointed by the foreign Grant;

identify the Deceased;

describe the foreign Grant and, if applicable, the Will and any other testamentary papers (e.g. a Codicil or a Memorandum) attached to the foreign Grant;

disclose the assets, liabilities and the distribution of the estate which are set out in the Statement of Assets, Liabilities and Distribution attached as Exhibit “A” to this Affidavit.

Preparation


The name of the personal representative appointed in the foreign Grant should be inserted.

Rule 21-5(64) of the Supreme Court Civil Rules deals with the domicile of the Deceased mainly that:

“... if the domicile of the deceased at the time of death, as sworn to or affirmed in the affidavit (Form 105) differs from that suggested by the description in a foreign grant, a registrar may require further evidence as to domicile.”

Consult the supervising lawyer in this regard if you notice a discrepancy between the two descriptions.

The situation as to the Will (or lack of it) should be described here, for example:

by his/her Will (dated) appointed me his/her Executor; or

died intestate.

The name of the foreign Court should be copied from the style of cause of the foreign Grant.

Continued...


FORM 105 (Rule 21-5(63))

This is the (1st/2nd) Affidavit of (Name) in this case and

was made on (date)




AFFIDAVIT TO LEAD TO RESEALING OF GRANT

I, (NAME OF APPLICANT), (occupation), of (residential address), in the (City), of

___________, SWEAR/AFFIRM THAT:

1. (NAME OF THE DECEASED, WITH ALL ALIASES), (occupation of the Deceased),

late of (residential address of the Deceased – not post office box), died on the ____ day of

_______________, 20___, at (name of City, province and country) domiciled in

(jurisdiction) having

2. A Grant of Probate of the Will (or: Letters of Administration of the Estate) of the

Deceased was made to (NAME OF PERSONAL REPRESENTATIVE) by Court of (foreign

jurisdiction) on (date).

3. I have made a diligent search and enquiry to ascertain the assets and liabilities of the

Deceased.

4. The Statement marked Exhibit “A” to this Affidavit discloses the assets and liabilities of

the Deceased, irrespective of their nature, location or value, which pass to the Deceased’s

personal representative, together with the names and addresses of the beneficiaries, their

relationship to the Deceased, and the property passing to them.

Continued...



AFFIDAVIT OF EXECUTOR(S) (Form 105 – Rule 21-5 (63))

Preparation (Continued)

This paragraph should only be inserted in the case of an application to reseal a Grant of Letters of Administration. If there are any unpaid debts, the following should be added:

“...except (list of creditors) and their consents in writing are filed herewith.”

(or:)

“... the administrator is the beneficiary.”

(or:)

“... the estate is of small value.”

(or:)

“...all persons who are or may be beneficially interested in the estate have consented in writing.”

Creditors’ Consents should be obtained for each creditor listed.

Where there are several applicants or if the person swearing the affidavit resides outside British Columbia, see Instructions for the preparation of Affidavits in Section III B-1.

Processing

As this Affidavit will most probably be sworn outside British Columbia:

if it is sworn in a Province of Canada other than British Columbia, the Affidavit must be sworn before a Notary Public for that Province, and the Notary’s seal must be affixed;

if the Affidavit is sworn outside Canada, the Canada Evidence Act (S. 63) should be referred to.

Unlike a Will in a British Columbia Probate application, the foreign Grant is not attached as an exhibit to this Affidavit.

The Statement of Assets, Liabilities and Distribution must be attached as Exhibit “A”.

All documents forming part of the application are filed together. Instructions for filing documents in the Probate Registry are listed at the end of each section relating to the three main applications, namely: Sections III B-1, B-2, and B-3.


- 2 -

5. I will promptly disclose to the Court the existence of any asset or liability that has not

been disclosed in Exhibit “A” to this Affidavit when I learn of the same.

6. I believe that there are no debts or liabilities in British Columbia for which the estate is

or may be liable except as disclosed in Exhibit “A”, all of which have been paid .

SWORN/AFFIRMED BEFORE ME at the (City) of _________, Province of British Columbia, this ___ day of_________, 20___ A Notary Public in and for the Province of (Name of Province)

))))))))

(NAME OF APPLICANT)



RESEALING A FOREIGN GRANT

ORDER

General Notes


Preparation



The relationship of the Administrator to the Deceased must be stated – for example: widow, son, sister, etc.

The words within the brackets should be omitted if the foreign Grant was for Letters Probate (that is if there was a Will).

Processing








BEFORE


______________

ON THE APPLICATION of (NAME OF EXECUTOR OR ADMINISTRATOR):





1. Letters Probate of the Will of the Deceased (or: Letters of Administration of the Estate of the Deceased) granted to (NAME PERSONAL REPRESENTATIVE), (relationship) by (name of foreign Court) Court of (name of foreign jurisdiction) at (City of jurisdiction) on (date) be resealed (without bond or other security) with the Seal of the Supreme Court of British Columbia under the Probate Recognition Act.


______________________________ Signature of


BY THE COURT

Registrar



CANCELLATION OF BOND

PROCEDURE

Once the Bond has been ordered by the Court (see Bonding earlier in this Section), it will be in effect during the administration of the estate by the person on whom the Bond is imposed (the personal representative). During that time, the insurance company will collect the premium from the personal representative and will only cancel the Bond on receipt of a court-certified copy of an Order cancelling the Bond.

The procedure set out here explains the steps to cancel such a Bond once the administration of the estate has been completed that is:

all debts have been paid and all claims have been settled;

all Income Tax Returns for the estate have been prepared, all income taxes have been paid and a Clearance Certificate for distribution purposes has been obtained;

the residue of the estate has been distributed to the beneficiaries;

all those to whom the duty is owed (that is all beneficiaries, heirs-at-law, unpaid legatees and creditors, as well as any other person who may be interested in the estate) have approved the accounts of the personal representative and have signed a Release and Indemnity.

At this point, the personal representative will arrange to apply to the Court to have the Bond cancelled.

Obtain a Release and Indemnity

Before distributing the residue of the estate, the personal representative must obtain:

accounts or accounting statements for approval by those to whom the duty to account is owed which are usually prepared by an accountant and should be as detailed as possible and include:

a list of assets at the beginning of the administration (usually from the date of death);

statement of receipts and disbursements (both capital and income);

a list of assets at the end of the period for which the accounts are prepared;

proposed remuneration of the personal representative (if any); and

statement of distribution.

a Release and Indemnity for each person or party to whom a duty is owed (for example: one Release and Indemnity per residual beneficiary).

The Release and Indemnity with the accounts attached as Schedule 1 must be signed and delivered to the lawyer to enable him or her to apply to the court for the cancellation of the Bond.


Prepare application documents

Affidavit of Administrator

This Affidavit (see example on the following pages) can only be prepared and sworn when all signed the Releases and Indemnities have been obtained. The Releases and Indemnities must be attached as Exhibits to the Affidavit.

Requisition

This document initiates the application to cancel the Bond.

Order

A draft Order is prepared and submitted with the other documents and, if approved by the court, will be signed and returned to you (together with the requested certified copy).

File documents with the court registry

A Backing Sheet should be attached to each document and sufficient copies made.

The documents should be filed in Probate Registry in the usual way.

Provide a court-certified copy of Order to insurance company

Once the Order and a court-certified copy have been received, the court-certified copy should be sent to the insurance company with a request to cancel the Bond and refund the unused portion of the premium, if applicable.



RELEASE AND INDEMNITY

General Notes

A Release and Indemnity must be prepared for each party to whom duty is owed (for example: a residual beneficiary or a creditor) who must release the personal representative in his or her capacity as Administrator of the estate (or Executor of the Will). The party signing a release is called a “Releasor”.

By signing this document, the Releasor:

approves the accounts of the personal representative and waives the formal passing of accounts;

acknowledges receipt of his or her share of the estate or of a particular asset;

gives up his or her right to a claim against the personal representative.

Preparation

The name of the personal representative must be copied from the original Grant.

The name and the address of the Releasor is inserted here. Keep in mind that a separate Release and Indemnity is prepared for each Releasor.

The relationship of the Releasor to the Deceased should be described, for example:

one of the heirs-at-law;

a beneficiary or a legatee;

a creditor.

The accounts are usually prepared from the date of death up to and including the date the personal representative is ready for the final distribution. These dates must be copied from the accounts attached to the Release and Indemnity.

The proportionate share of the Releasor is inserted here, for example, if the Deceased left three children who share equally, the words should be “one-third”.


IN THE MATTER OF THE ESTATE OF (NAME OF THE DECEASED, WITH ALL ALIASES)

Late of the City of (City), in the Province of British Columbia.

To: (NAME) Administrator of the Estate of (NAME OF THE DECEASED, WITH ALL ALIASES)


I, (NAME), of (Address), being one of (the residual beneficiaries) of the Estate

of (NAME OF THE DECEASED, WITH ALL ALIASES) (the “Estate”) who died on or about

(date):

1. Acknowledge that I have received and reviewed the accounts for the Estate from to

and confirm that I do not wish to see any further accounts for the period, and do hereby

declare that I am satisfied with these accounts, and hereby request that you do not pass the

accounts before a Judge of the Supreme Court of British Columbia as I understand you are

entitled to and declare that I will not, at any time in the future, request that you do so.

2. Acknowledge receipt of the funds listed in Schedule “A” hereto as my share of the

Estate in full satisfaction of my beneficial interest in the Estate.

3. Remise, release and forever quit claim you as the Administrator of the Estate from any

further claims that I may have against the Estate or against you as the Administrator of the

Estate, except for my claim to my proportionate share of the remaining funds still held by you

as a holdback amount as set out in the accounts after payment of any further amounts

properly payable to you as Administrator, and except for my claim to share in any assets of the

Estate that may come into your hands as Administrator of the Estate after the date to which

the accounts are prepared, including, without limitation, any interest earned on the funds

retained by you as a holdback amount in respect of the Estate.

4. To the extent of the value of the assets received by me from the Estate, agree to

indemnify and hold you harmless from and to reimburse you for any further claims made

against the Estate or against you as Administrator of the Estate and any amounts properly

payable by the Estate or by you as an Administrator of the Estate on account of debts of the

Deceased or debts of you as Administrator of the Estate, and for any costs and expenses

legal, or otherwise, incurred in disputing any such claims made or amounts payable, whether

such claims or payments are made by or to persons claiming as creditors or beneficiaries or

heirs of the Estate or in any other capacity, to the extent of of such payments, claims, costs

or expenses, if there are no funds in the Estate from which to pay the same.

Continued...




Preparation (Continued)

If the Releasor consulted a law firm other than yours, the name of that law firm should be inserted here and the words “solicitor for the Administrator” omitted.

Processing

A copy of the account (or accounting statement) should be attached to each Release and Indemnity as Schedule 1 and the words “Schedule 1” typed on each copy in the upper right hand corner.

The usual Backing Sheet should be prepared and stapled to the Release and Indemnity (using a blue corner if appropriate).

Once the Release and Indemnity is dated, signed and witnessed, it will be attached as one of the Exhibits to the Affidavit of the Administrator, with the following notation typed on the Release and Indemnity (or if available, an exhibit stamp with similar wording affixed):

THIS IS EXHIBIT “___” referred to in the Affidavit of ________________________ sworn before me at the City of (City), in the Province of British Columbia, this _______ day of ______________, 20___.

_______________________________________________ A Commissioner for taking Affidavits for British Columbia

or:

A Notary Public in and for the Province of _______________________

The Affidavit of Administrator and the Exhibit must be sworn before the same lawyer and the dates on both documents must be the same.

All documents in support of the cancellation of the Bond must be filed with the Requisition.


- 2 -

5. Confirm that I have been advised by , solicitors for the Administrator, to obtain

independent legal advice concerning the Estate and this Release and Indemnity, but I have

chosen not to do so.

6. Declare that this Release and Indemnity shall be binding on my heirs, executors,

administrators, beneficiaries, successors and assigns and shall enure to the benefit of your

respective heirs, executors, administrators, beneficiaries, successors and assigns.

SIGNED in the presence of: ) ) ) __________________________________ ) Name ) ) ) Address ____ ) _________________________________ ) (NAME OF RELEASOR) ___________________________________ ) ) Occupation: ) )



AFFIDAVIT OF ADMINISTRATOR

General Notes

Generally, the Bond is obtained in an administration situation and, accordingly, the wording here refers to an Administrator. If, for some reason, the Bond was obtained in a Probate situation, wherever the word “Administrator” appears, it should be changed to “Executor”. Conversely, if the applicant is a female, the words may be changed to the feminine version, and the applicant referred to as the “Administratrix”.

Preparation

The style of proceeding must be identical throughout all documents. The number is obtained from the initial application for the Grant of Letters of Administration or Letters Probate.

The name of the personal representative appointed by the original Grant of Letters of Administration should be inserted here.

The date must be copied from the original Grant of Letters of Administration.

The date of the Order ordering the Bond should be inserted here (this date is different from the date in above).

All beneficiaries should be listed here, for example, the spouse and the four children. The names are usually found in the Statement of Assets, Liabilities and Distribution. A Release and Indemnity must be signed by each of the persons listed.

The names are usually the same as in but you may have additional names, such as creditors.

As each of the Releases and Indemnities will be attached as separate Exhibits, they should be identified consecutively as “A”, “B”, “C”, etc.

Processing

The Releases and Indemnities must be attached as Exhibits to this Affidavit with an exhibit stamp or notation (see page 34).

The Affidavit should be dated and sworn before a lawyer.



This is the {1st/2nd} Affidavit of

{Name} in this case and was made on {date}




AFFIDAVIT OF ADMINISTRATOR

I, (NAME OF APPLICANT), (occupation), of (residential address), in the (City), of ___________, SWEAR/ AFFIRM THAT:

1. I am the Administrator of the Estate of (NAME OF THE DECEASED WITH ALL ALIASES) who died on (date) at (City).

2. Letters of Administration were granted to me on (date).

3. Pursuant to the order of a (Master of the Supreme Court) or: (the Honourable Justice (name) dated (date), I posted an administration bond in the amount of $________ payable to the order of the Registrar of the Supreme Court of British Columbia, and this bond was filed with the Registrar.

4. To the best of my knowledge, there are no liabilities for which the Estate may be liable.

5. The Deceased left surviving him/her who are all of the age of majority.

6. The people interested in the Estate are . They have approved my accounts as to the administration of the Estate and have received their distributive portions of the Estate pursuant to those accounts. Copies of the Releases and Indemnities of the aforementioned persons are attached hereto and marked Exhibits ”A” and “B” respectively.

SWORN/AFFIRMED BEFORE ME at the (City) of _________, Province of British Columbia, this ___ day of_________, 20___ A Commissioner for taking Affidavits in British Columbia

))))))))

(NAME OF ADMINISTRATOR)



CANCELLATION OF BOND

REQUISITION

General Notes

The application to cancel a Bond is initiated by a Requisition.

Preparation


Check the appropriate box.

Processing

Once all documents in support of the application to cancel the Bond are ready, that is:

Releases and Indemnities with accounts attached;

Affidavit of Administrator; and

draft Order;

they are filed together with this Requisition.


FORM 31 (RULES 7-8(17), 8-3(1), 8-4(1) AND 17-1(2))




REQUISITION FOR CONSENT ORDER OR FOR ORDER WITHOUT NOTICE

Filed by: (NAME OF APPLICANT)

Required: An order by consent

[or]

An order without notice

1. The rule or other enactment relied on is 8-4(1).

2. Attached to this requisition is a draft of the order required.

3. Each party affected has consented to the order.

The evidence in support of the application is:

(a) Affidavit No. (number) of (Name) made (date) with Releases and Indemnities exhibited.

4. No party is under a legal disability.

(name of party) is under a legal disability, namely (set out legal disability).

This requisition is filed by (NAME OF APPLICANT) the Applicant in this proceeding, whose address for service is as follows:

(Address of law firm)

Fax number address for service (if any): (fax number)

E-mail address for service (if any): (email address)

Dated: (date)

______________________________ Signature of

filing party lawyer for filing party(ies)

(print name)



CANCELLATION OF BOND ORDER

General Notes


Preparation



Processing



No._________________ VANCOUVER REGISTRY





BEFORE


______________

ON THE APPLICATION of: (NAME OF ADMINISTRATOR)





1. the Applicant be discharged as the Administrator of the Estate of (NAME OF THE

DECEASED, WITH ALL ALIASES); and

2. the Administration Bond herein be delivered up and cancelled.


______________________________ Signature of


BY THE COURT

Registrar



CAVEAT

EXPLANATION

A Caveat is a document filed with the Probate Registry of the Supreme Court by a person intending to oppose the issue of a Grant of Probate or Administration. While the Caveat is in force, no Grant may be issued.

The filing of a Caveat ensures that the Caveator will receive notice if a Grant is being issued. This is very important especially if the Caveator is not entitled to Notice under section 112 of the Estate Administration Act.

A Caveat may only be filed:

by a person with an interest in the estate or the Will of the Deceased. The supervising lawyer must determine whether a person is entitled to file a Caveat; and

after the death, but before a Grant of Probate or Letters of Administration is issued.

Once the Caveat is filed in a Probate Registry, the Registrar of that Registry will notify the Registrar at Victoria (which is the central Registry for all Grant applications and Caveats) and the Victoria Registrar will, in turn, notify all the other Registrars in British Columbia.

If you suspect that a Caveat has been filed (or for that matter, if you want to ascertain whether or not a Grant has been issued), you should conduct a central search in the Victoria Probate Registry (see procedure for Searching for Grants and Caveats below).

Before issuing a Grant, the Probate Registry will search all the registries province-wide for any outstanding Caveats. This search would also reveal an outstanding Grant for the Deceased. However, as some time elapses between the time an application for a Grant is filed and the actual Grant is issued and, on the other hand, a Caveat may be filed up to the last minute, the Registry only conducts a search just before the Grant is issued – not when an application is filed.

A Caveat expires six months after the date of its filing unless it is withdrawn by the Caveator or renewed by an Order of the Court (Rule 21-5(43)). Such Order and the procedure to renew a Caveat is beyond the scope of the Guide. Please note that, in certain instances, it may be possible to file a new Caveat when the first Caveat has expired.

A person who intends to apply for a Grant of Probate or Letters of Administration, may try to cancel the Caveat by:

filing a Notice to Caveator in the Registry in which the Caveat was filed; and

delivering a copy of the filed Notice to Caveator to the Caveator (or the Caveator’s solicitor) at the address for delivery set out in the Caveat.

If the Caveator does not file a Notice of Interest in relation to the Notice to Caveator, within seven days, the person who filed the Notice to Caveator may apply to the Supreme Court Registry to withdraw the Caveat (see step 14 below). The Registrar shall then cancel the Caveat and notify the Registrar in Victoria. The Victoria Registrar will notify the other registries of the cancellation

However, if a Notice of Interest in relation to the Notice to Caveator is filed by the Caveator, the Caveat may only be removed by Court Order or by a Consent under Rule 21-5(47) (both of which are beyond the scope of the Guide).


PROCEDURE

Searching for Caveats or Grants

1. Prepare a Requisition for the search. You may use any form of Requisition – General (Form 17) contained in the Guide. In the “Required” section of the Requisition, insert: “Search of Central Probate Registry for a Grant (or: Caveat) for (NAME OF THE DECEASED, WITH ALL ALIASES). Ensure that all the known names for the Deceased are shown.

2. File the Requisition in the Victoria Registry – this may be done through your filing agent.

When acting for Caveator

3. Prepare the Caveat and arrange to have it dated and signed by the Caveator or solicitor for the Caveator.

4. File the Caveat in the appropriate Court Registry.

5. Diarize the file for six months from the date of filing.

If you receive a Notice to Caveator:

6. Prepare an a Notice of Interest (Form 70) and arrange to have it dated and signed either by the Caveator or the responsible solicitor. (Note: for the form of Notice of Interest, refer to the Guide to Civil Litigation, or check with your litigation department).

7. File the Notice of Interest in the Court Registry where the Caveat was filed.

8. Arrange to serve the Notice of Interest on the Caveator or his or her solicitor.

9. Check with the supervising lawyer to determine if the matter should be referred to the litigation department in your office.

When acting for a prospective representative of the estate

10. If the search for a Caveat (see step 1) reveals that a Caveat has been filed, or if you have been served with a copy of the Caveat, prepare a Notice to Caveator and arrange to have it dated and signed by the prospective personal representative.

11. File the Notice to Caveator in the appropriate Registry.

12. Arrange to have a filed copy of the Notice to Caveator served on the Caveator.

13. Diarize the file for seven days from the filing of Notice to ascertain that no Notice of Interest has been received.

14. If no Notice of Interest is received, in order to cancel the Caveat, prepare:

(a) Affidavit of Service;

(b) Requisition (use any form of Requisition (Form 17) in the Guide and under “Required” type the words: “Cancellation of Caveat filed on (date) by (name of Caveator)”.

Note: For the form of Affidavit of Service, refer to the Guide to Civil Litigation, or check with your litigation department).

15. Arrange to have the Affidavit of Service sworn.

16. File the Affidavit of Service and the Requisition in the Court Registry.

17. If an Notice of Interest is filed and received in your office, as the matter may have become contentious, check with the supervising lawyer to determine if the matter should be referred to the litigation department in your office



CAVEAT (Form 97 (Rule 21-5(41))

General Notes

For an explanation regarding Caveats in general, see Explanation on page 42.

A Caveat may be only filed:

by a person with an interest in the estate and Will of the Deceased;

after the Deceased’s death, but before a Grant of Probate or Letters of Administration is issued.

Preparation

The number should be left blank as it will be assigned to the Court’s file when the documents are filed in the Registry. The name of the city where the Caveat is filed should be inserted.

The full legal name of the Caveator should be inserted.

The nature of the Caveator’s interest in the estate or the Will of the Deceased and the grounds on which the Caveator is filing the Caveat must be described here (Rule 21-5(41) of the Supreme Court Civil Rules. The supervising lawyer should dictate the reason(s) why the Caveat is filed.

The address for delivery (either of the Caveator, or preferably, c/o the solicitor) must be shown. This will be later necessary if anyone files a Notice to Caveator (see next page).

Processing

Once the Caveat is reviewed, dated and signed by the Caveator (or solicitor for the Caveator), it should be filed in the Probate Section of the Supreme Court Registry with the appropriate fee.

Proceed to step 4 and 5 of the Caveat Procedure.


FORM 97 (Rule 21-5(41))

No. _______________ (City) Registry


Re: the Estate of (NAME OF THE DECEASED, WITH ALL ALIASES)

CAVEAT – ESTATES

LET NOTHING BE DONE without notice to (NAME OF CAVEATOR) in the estate of

(NAME OF THE DECEASED, WITH ALL ALIASES), deceased, late of (address) who died

on (date) at (place) of in the (province) of (specify province/county).

The Caveator is ...

Dated: (date)

______________________________ Signature of

Caveator lawyer for Caveator(s)

(print name)

Caveator’s address for service:

Fax number address for service (if any): (fax number)

E-mail address for service (if any): (email address)



NOTICE TO CAVEATOR (Form 98 (Rule 21-5 (46))

General Notes

The first steps to cancel a Caveat are:

filing a Notice to Caveator in the Registry in which the Caveat was filed; and

delivering a copy of the filed Notice to Caveator (or the Caveator’s solicitor) at the address set out in the Caveat.

If no Notice of Interest is filed to the Notice to Caveator, proceed to steps 14 to 16 of the Procedure.

Preparation

The style of cause must be copied from the Caveat.

The name of the Caveator exactly as shown on the Caveat must be inserted.

The name of the city where the Caveat was filed must be inserted – it must match the city in the style of cause .

The name of the person who is applying to cancel the Caveat is inserted.

The grounds on which the Caveat is being withdrawn must be explained (see Rule 21-5(46)).

The date the Notice is typed should be inserted.

Processing

Once the Notice has been reviewed, dated and signed, it should be filed in the Court Registry. There is no filing fee for the Notice.

For further processing, see steps 11 to 13 of the Procedure re: Caveats.


FORM 98 (Rule 21-5(46))

No. _______________ (City) Registry


Re: the Estate of (NAME OF THE DECEASED, WITH ALL ALIASES)

NOTICE TO CAVEATOR

To: (name)

TAKE NOTICE that, unless you file a Notice of Interest at the office of the Registrar of the Supreme Court of British Columbia at (City) within 7 days after delivery of a copy of this notice, the caveat you filed in the estate of (NAME OF THE DECEASED, WITH ALL ALIASES), deceased, will be struck out by the Registrar.

This notice was filed by or on behalf of (name) whose address for delivery is (address) and who claims a right to issue this notice on the ground that:

A copy of your Notice of Interest is to be served to the above address for service promptly after the original is filed at the office of the Registrar.

Dated (date)

______________________________ Signature of

person filing notice lawyer for person filing notice

(print name)



DEATH OF PERSONAL REPRESENTATIVE AFTER GRANT AND BEFORE COMPLETION OF ADMINISTRATION OF ESTATE

Sometimes, before the administration of an estate is completed, a personal representative to whom the initial Grant of Probate or Administration was made:

dies;

becomes incapable of managing his or her affairs or continuing to manage the estate and/or is removed from office; or

is unwilling or refuses to act, or continue to act and/or wishes to be discharged.

As the administration of the estate must be completed, there are a number of procedures to accomplish this depending on each situation, and especially, the Will of the Deceased (if there is one). We have listed the ones most commonly encountered in the table below. Even within those situations, there may be many variables.

Please note that in the table and the explanations below:

“Executor/Administrator dies” also implies that he or she is no longer capable of managing his or her affairs or continuing to manage the estate; is removed from office; or is unwilling or refuses to act, or continue to act or wishes to be discharged; and

“two” may mean a greater number – but a minimum of two.

Original Testator’s Will Appointments in Grant and what happens to the Personal Representative

Procedure

Two Executors appointed in the Will

No alternate named in the Will No minimum number of Executors required by Will

Two Executors are appointed

One dies

Surviving Executor continues to act

No Will Two Administrators Appointed

One Administrator dies

Surviving Administrator continues to act

One or more Executors are appointed

Sole Executor or last surviving Executor dies testate

Chain of Executorship Executor of the last surviving Executor assumes that Executor’s duties

Will of the deceased Executor must be first probated

One or more Executors appointed in the Will

No alternate named in the Will

Sole Executor or last surviving Executor dies intestate

Grant of Letters of Administration de Bonis Non With Will annexed


Original Testator’s Will Appointments in Grant and what happens to the Personal Representative

Procedure

Three Executors appointed in the Will.

Minimum of three Executors required by the Will and Will names an alternate if number of Executors falls below minimum

Three Executors appointed in the Will.

If one of them dies, s/he must be replaced by alternate named in the Will

Three Executors are appointed

One dies

Second grant to appoint alternate Executor named in the Will

Executor – Solicitor or other professional appointed in the Will.

Executor’s Will appoints a separate Executor to complete any unadmi-nistered portion of (client’s) estate

Executor proves the Deceased’s Will and dies

One or more Executors appointed in the Will

No alternate

All Executors die and their personal representatives or unwilling to act or Executors die intestate

Grant of Letters of Administration de Bonis Non with Will Annexed of the original Testator.

Deceased dies intestate Administrator appointed and dies

Personal representative of the deceased Administrator applies for Grant of Letters of Administration de Bonis Non of the estate of Deceased unless someone else has a prior right

One of the Personal Representatives Dies

If two or more Executors or Administrators are appointed in a Grant, and one of them dies, the surviving Executor (Administrator) or Executors (Administrators) will continue to act (s. 12(1) of the Trustee Act). This the simplest situation.

The Land Title Office will require proof of death of the deceased personal representative.



However, when this happens, you should check the Will of the Deceased (if there is one) very carefully because if:

an alternate or substitute Executor is named in the Will if one of the Executors dies – the survivor (if any) and the alternate will apply for a second grant.

For example:

in his Will, the Testator appoints Ames and Brown to be the Executors;

if either Ames or Brown die, the Testator appoints Collins as an alternate Executor;

Ames dies before the administration of the estate is completed;

Brown and Collins will apply for a second grant appointing them as the Executors (see page 51 below).

or:

if the Will requires a minimum number of Executors which is greater than the number of surviving Executors and the Will names an alternate, the surviving Executor(s) and the alternate will also apply for a second grant.

For example:

the Testator appoints Ames, Brown and Smith as Executors;

the Will goes on to say that there should always be a minimum of three Executors; and if the number of Executors ever falls below three, any vacancy in the office of Executors and Trustees of the Will shall be filled by White so that the number of Executors shall continue at three during the administration of the Testator’s estate;

Smith dies before the administration of the estate is completed;

Ames, Brown and White will apply for a second grant naming them as Executors (see page 51)

Sole or Last Surviving Personal Representative Dies Testate – Chain of Executorship

In a situation when:

a Grant is issued and:

the sole or the last surviving Executor dies testate before completing the administration of the estate; and

there is no alternate Executor named in the Will of the Deceased;

then, pursuant to Section 64 of the Estate Administration Act, the Executor of the last surviving Executor’s Will becomes the Executor of the Deceased’s Will and will assume the deceased (original) Executor’s duties of administering the estate. The new Executor will have the same duties as the original Executor. This is sometimes called: chain of executorship.

In order for this to happen, the following conditions must the met:

the original (deceased) Executor must have taken probate before his death;

each Will in the chain of executorships must have been probated. For example:


Brown is the last surviving Executor of the Will of Jones;

Brown dies appointing Smith in his Will, Brown’s Will must be probated before Smith can replace Brown as Executor of Will of Jones); and

if there are several Executors, it is the Will of the last surviving Executor that is probated. For example, Jones appointed Ames and Brown as Executors. If Ames dies first, Brown will continue as Executor. But when Brown dies, it is Brown’s Will that will be probated.

The title to any asset will be registered as follows “Smith, Executor of the Will of Brown, Deceased, the Executor of the Will of Jones, Deceased”.

An intervening grant of administration will also break the chain of executorships. For example, in the situation above, if Brown does not have a Will, Letters of Administration de Bonis Non of the Estate of Jones are applied for.

The chain of Executorship shall not apply in the following situations:

an alternate or substitute Executor is named in the Will in case one of the Executors appointed dies or if the number of Executors ever falls below a minimum number; or

if the deceased (original) Executor has appointed in his or her Will different Executor(s) to complete any uncompleted administration (for example, a lawyer who is the Executor of a client’s Will, may have named one Executor to deal with his or her personal assets, and another Executor – such as another partner in the law firm – to deal with the uncompleted administration of a client’s estate);

then such Executor would have to apply for a Grant of Letters of Administration de Bonis Non with Will Annexed of the original Testator.

If the sole surviving Executor dies intestate before the administration of the estate has been completed, then the personal representative of the deceased Executor may apply for a Grant of Letters of Administration de Bonis Non with Will Annexed of the Deceased Testator.

Second Grant – Alternate Executor Named in the Will

A second Grant is required depending on the nature of assets still unadministered(1), when:

the sole or the last surviving Executor dies before completing the administration of the estate; and an alternate Executor is named in the Will of the Deceased; or

one of the Executors appointed in the Grant dies before completing the administration of the estate and the Will states that if one of the Executors dies, the alternate Executor named in the Will must replace the deceased Executor; or

the number of Executors falls below a minimum required by the Will of the Testator and there is an alternate Executor named in the Will.

However, if two Executors are named in the Will and the Will states both Executors must die before the alternate named in the Will is appointed then, if one of the Executors dies, the surviving Executor continues to act.

(1) For example, if the unadministered asset is land.



Notes: If two Executors are appointed, and only one dies, the surviving Executor and the alternate Executor named in the Will become the new applicants as the original Grant is revoked.

The clause in the Will appointing the alternate Executor must state “if (Name) is unwilling or unable to act or to continue to act …”, otherwise, you would have to apply for a Grant of Administration With Will Annexed de Bonis Non.

Procedure to apply for Second Grant

The application for a second grant must be made in the same registry as the original Grant.

The style of cause and the action number are the same as for the original application and there is no fee payable.

The following must be prepared and filed in the Probate Registry:

Requisition

Use the Requisition on page 2 of Section III B-1.

Under “Required” change the wording to:

“Revocation of Grant of Letters Probate of the Will of (NAME OF THE DECEASED – FROM ORIGINAL GRANT), Deceased, dated (date of original Grant) appointing (NAME(S) OF DECEASED EXECUTOR(S)).

Second Grant of Letters Probate to (NAME(S) OF NEW EXECUTOR(S))”

Under “This requisition is supported by the following:” add at the end: “draft Order”.

Affidavit of Executor

Prepare the Affidavit of Executor using the precedent on page 18 of Section III B-1 with the following alterations to paragraphs 2 and 3 (and adapting the wording to the circumstances) and note:

if two Executors are appointed in the Will, and only one dies, the surviving Executor and the alternate Executor named in the Will become the new applicants as the original Grant is revoked.

if there are two applicants, insert the name of the first applicant (I, (Name), am named…), and at the end of the sentence with: “… and the applicant (Name) is continuing in his/her capacity as Executor”.

“2. A Grant of Letters Probate of the Will dated (date) of (NAME OF THE DECEASED – FROM ORIGINAL GRANT), Deceased, was granted by the Supreme Court of British Columbia on (date of original Grant) to (NAME OF DECEASED EXECUTOR) and is attached as Exhibit “A” to this Affidavit.

3. (NAME OF DECEASED EXECUTOR) died on (date) at (place of death – city and province) before the administration of the estate of the Deceased was completed. I am named in the Will of (NAME OF THE DECEASED) as alternate Executor and trustee should (NAME OF DECEASED EXECUTOR) die before the administration of the estate was completed. My appointment has not been revoked under section 16 of the Wills Act by reason of a decree of


judicial separation, divorce or nullity granted after the date of the Will in respect of a marriage of the Deceased.”

Notes: Delete the last sentence of paragraph 3 (My appointment has not …) if the applicant is other than the surviving spouse of the Deceased.

You have to clear any person who has reserved the right to apply at a later date.

You must file the original Grant with the Probate Registry and if same is not available (because it is lost or destroyed), you must explain why it is not attached to this Affidavit.

Statement of Assets, Liabilities and Distribution showing only the unadministered assets (which will in fact explain why this application is necessary);


Use the precedent on page 6 of chapter III B-1 with the following changes:

“I(1) , (NAME OF NEW EXECUTOR/APPLICANT), (occupation), of (residential address), in the (City) of ___________, in the Province of British Columbia, SWEAR/ AFFIRM THAT:

1. (NAME OF DECEASED EXECUTOR) was appointed as Executor of the Will dated (date) of (NAME OF THE DECEASED), Deceased, pursuant to a Grant of Letters Probate dated (date of original Grant). (NAME OF DECEASED EXECUTOR) died on (date) at (place of death – city and province) before the administration of the estate of the Deceased was completed. I (2) am named in the Will of (NAME OF THE DECEASED) as alternate Executor and trustee should (NAME OF DECEASED EXECUTOR) to die before the administration of the estate was completed, (2)and I am the applicant for a second Grant of Probate of the Deceased Will.”

The persons entitled to Notice are the same as in the Affidavit sworn in the original application unless a person has died since the Notice. If a person has died since the date of the original Grant, depending what happens to that person’s share of the deceased’s estate, the Notice should be sent to the legal representative of the deceased beneficiary.

If minors, mentally disordered persons or persons with a representative are entitled to Notice, you will have to send a Notice to the Public Guardian and Trustee of British Columbia (see page 9 of Section III B-1). However, check the ages of the minors as, in the meantime, they may have reached majority.

original Grant or a court-certified copy of original grant. Note: if it cannot be found, an explanation must be included in the Affidavit of Executor as to why the original Grant is not filed;

draft Order;

(1) If two Executors are appointed in the Will, and only one dies, the surviving Executor and the alternate

Executor named in the Will become the new applicants as the original Grant is revoked. (2) If there are two applicants, insert the name of the first applicant and after “…was completed, insert: “… and

the applicant (Name) is continuing in his/her capacity as Executor” and change to “we are the applicants…”.



ORDER FOR A SECOND GRANT

General Notes

For a discussion as to when this Order is applied for, see “Second Grant – Alternate Executor Named in the Will” on page 51.

Preparation

The style of proceeding and the action number are the same as for the original application. They must be identical throughout all documents. The application must be made in the same registry as the original Grant.


The applicant is the new personal representative. However, as the previous Grant is revoked, if there were two Executors appointed by the previous Grant, and one survived, the survivor must be re-appointed and also become the applicant.

The original Grant should be described.

The names of all the original Executors must be inserted.

This clause should only be included if original Grant cannot be produced.

Processing



No. ________________ VANCOUVER REGISTRY





BEFORE


______________

ON THE APPLICATION of (NAME OF APPLICANT):





1. The Grant of Letters Probate issued on (Date) to be revoked;

2. A second Grant of Letters Probate of the Will of (NAME OF THE DECEASED, WITH ALL ALIASES), deceased, of the unadministered portion of the estate of (NAME OF THE DECEASED, WITH ALL ALIASES) be granted to (NAME OF APPLICANT(S));

3. Production and filing of the original Grant of Letters Probate of the Will of (NAME OF THE DECEASED, WITH ALL ALIASES) be dispensed with, it appearing from the Affidavit of the said Applicant(s) that the said document has been lost.


______________________________ Signature of


BY THE COURT

Registrar



Administration de Bonis Non

If a portion of the estate remains unadministered and:

on the death of the sole or last surviving executor where the chain of executorship is broken (e.g. the personal representative dies intestate); or

all Executors named in the Will (including those to whom power was reserved) are cleared off (because they predeceased, renounced or are unable or unwilling to act);

on the death of the sole or last surviving administrator;

a new Administrator must be appointed to complete the administration of the estate. The kind of Grant for an administration de Bonis Non depends on the original Grant:

If there was no Will and the original grant was a Grant of Letters of Administration, a Grant of Letters of Administration de Bonis Non will be applied for.

The personal representative of the deceased Administrator or any other person who would have priority to apply under Part 10 of the Estate Administration Act or a person beneficially interested in the estate may apply. In other words, the same “clearances” requirements apply as for the Letters of Administration (see pages 12 and 13 of Section III B-2).

The rules for the original Grant will apply to the Grant de Bonis Non.

If there was a Will and the original Grant was either a Grant of Letters Probate or Letters of Administration with Will Annexed, a Grant of Letters of Administration de Bonis Non with Will Annexed will be applied for.

The following may apply for a Grant de Bonis Non with Will Annexed:

a person next in order of priority (e.g. residuary beneficiary under the Will of the Deceased);

if the residuary beneficiary was also the deceased personal representative, the personal representative of the residuary beneficiary;

the personal representative of the original personal representative;

any other beneficiary under the Will; or

a creditor.

Generally, the same rules of priority would apply as for Letters of Administration with Will Annexed.


Procedure to apply for a Grant de Bonis Non

The application for a Grant de Bonis Non must be made in the same registry as the original Grant.

The style of cause and the action number are the same as for the original application and there is no fee payable.

The following must be prepared and filed in the Probate Registry:

Requisition

Use the Requisition on page 2 of Section III B-1.

Under “Required” change the wording to:

“Revoke Grant of Letters Probate of the Will/Letters of Administration with Will annexed of (NAME OF THE DECEASED – FROM ORIGINAL GRANT), Deceased, dated (date of original Grant) appointing (NAME OF DECEASED EXECUTOR).

Grant of Letters Administration de Bonis Non (with Will Annexed).

Under “This requisition is supported by the following:” add at the end: “draft Order”.

Affidavit of Administrator de Bonis Non

Use the precedent on page 12 of chapter III B-2 with the alterations set out below. Please note that, as you have to file the original Grant with the Probate Registry, if same is not available (because it is lost or destroyed), you will have to explain why it is not attached to this Affidavit.

If the original Grant was for Probate:

“2. A Grant of Letters Probate of the Will of (NAME OF THE DECEASED – FROM ORIGINAL GRANT), Deceased, dated (date) was granted by the Supreme Court of British Columbia at (City) on (date of original Grant) to (NAME OF DECEASED EXECUTOR) and is attached as Exhibit “A” to this Affidavit.

3. (NAME OF DECEASED EXECUTOR) died on (date) at (place of death – city and province) before the administration of the estate of the Deceased was completed. I am (identify the applicant and continue with wording pages 12 and 13 and follow the explanation in to identify the applicant and clear off any person who has a prior or equal right to apply. (Note: You will need Renunciations or Consents from them). You will also need to identify those persons to whom power to apply at a later date was reserved.”



Or, if the original Grant was for Letters of Administration:

“2. A Grant of Letters of Administration of the estate of (NAME OF THE DECEASED – FROM ORIGINAL GRANT), Deceased, dated (date) was granted by the Supreme Court of British Columbia at (City) on (date of original Grant) to (NAME OF DECEASED ADMINISTRATOR) and is attached as Exhibit “A” to this Affidavit.”

3. (NAME OF DECEASED ADMINISTRATOR) died on (date) at (place of death – city and province) before the administration of the estate of the Deceased was completed. I am (identify the applicant and continue with wording pages 12 and 13 of Section III B-2 and follow the explanation in to identify the applicant and clear off any person who has a prior or equal right to apply (Note: You will need Renunciations or Consents from them).”

Statement of Assets, Liabilities and Distribution showing only the unadministered assets (which will in fact explain why this application is necessary);

Renunciations from those having a prior right and Consents from those having an equal right to apply (if required).

Affidavit with respect to S. 112 Notice

Use the precedent on page 6 of chapter III B-1 with the following changes:

“I, (NAME OF APPLICANT: NEW EXECUTOR/ADMINISTRATOR), (occupation), of (residential address), in the (City) of ___________, in the Province of British Columbia, SWEAR/ AFFIRM THAT:

If the original Grant was for Probate:

“1. (NAME OF DECEASED EXECUTOR) was appointed as Executor of the Will dated (date) of (NAME OF THE DECEASED), Deceased, pursuant to a Grant of Letters Probate dated (date of original Grant). (NAME OF DECEASED EXECUTOR) died on (date) at (place of death – city and province) before the administration of the estate of the Deceased was completed. I am the applicant for a Grant of Letters of Administration de Bonis Non with Will annexed of (NAME OF THE DECEASED).”

If the original Grant was for Letters of Administration:

“1. (NAME OF DECEASED ADMINISTRATOR) was appointed as Administrator of the estate of (NAME OF THE DECEASED), Deceased, pursuant to a Grant of Letters of Administration dated (date of original Grant). (NAME OF DECEASED ADMINISTRATOR) died on (date) at (place of death – city and province) before the administration of the estate of the Deceased was completed. I am the applicant for a Grant of Letters of Administration de Bonis Non of the estate of (NAME OF THE DECEASED).”

If minors, mentally disordered persons or persons with a representative are entitled to Notice, you will have to send a Notice to the Public Guardian and Trustee of British


Columbia (see page 9 of Section III B-1). However, check the ages of the minors as, in the meantime, they may have reached majority.

original Grant or a court-certified copy of original grant. Note: if it cannot be found, an explanation must be included in the Affidavit of Executor as to why the original Grant is not filed;

draft Order.



ORDER DE BONIS NON

General Notes

For a discussion as to when this Order is applied for, see “Administration de Bonis Non” on page 56.

Preparation

The style of proceeding and the action number are the same as for the original application. They must be identical throughout all documents. The application must be made in the same registry as the original Grant.


The applicant is the new personal representative.

The original Grant should be described (e.g. Grant of Letters Probate or Grant of Letters of Administration).

The names of all the original Executors must be inserted.

If original Grant was a Grant of Letters Probate – use this paragraph.

If original Grant was Letters of Administration – use this paragraph.

This clause should only be included if original Grant cannot be produced.

Processing



No. ________________ VANCOUVER REGISTRY




) THE HONOURABLE JUSTICE ____________ ) ) or A JUDGE OF THE COURT ) ) Or ) ) MASTER (name) _______________________ )

BEFORE


______________






1. Letters of Administration with Will Annexed Probate of the estate of (NAME OF DECEASED WITH ALL ALIASES) issued on (Date) to who died on (date of death of original Executor/Administrator) be revoked;

2. Letters of Administration de Bonis Non with Will Annexed of the unadministered portion of the estate of (NAME OF THE DECEASED, WITH ALL ALIASES) deceased, who died on (date of death of Deceased) at (place of death of Deceased), be granted to (NAME OF NEW ADMINISTRATOR, THE APPLICANT) (WITHOUT BOND);

or:

2. Letters of Administration de Bonis Non of the unadministered portion of the estate of (NAME OF THE DECEASED, WITH ALL ALIASES), deceased who died on (date of death of Deceased) at (place of death of Deceased), be granted to (NAME OF NEW ADMINISTRATOR, THE APPLICANT) WITHOUT BOND;

3. Production and filing of the original Grant of Letters of Administration of the estate of the said deceased Letters Probate of the Will of (NAME OF THE DECEASED, WITH ALL ALIASES) be dispensed with, it appearing from the Affidavit of the Applicant that this document has been lost.

THE FOLLOWING PARTIES APPROVE THE FORM OF THIS ORDER AND CONSENT TO EACH OF THE ORDERS, IF ANY, THAT ARE INDICATED ABOVE AS BEING BY CONSENT: ______________________________ Signature of


BY THE COURT

Registrar


LETTERS OF ADMINISTRATION BY ATTORNEY EXPLANATION

In some situations, a person entitled to the administration of an estate resides outside British Columbia. Such person may have been named as Executor in the Will of the Testator or appointed as personal representative by a court of foreign jurisdiction. However, it may be inconvenient for such person to deal with assets in British Columbia and he or she may wish to appoint someone in British Columbia as his or her attorney to act on his or her behalf. In such case, the person (who becomes the “donor”) would sign a Power of Attorney and Letters of Administration (or Letters of Administration with Will Annexed) by attorney(1), may be applied for:

Pursuant to Rule 21-5 (27) of the Rules of Court: where a person entitled to administration resides outside British Columbia, administration, or administration with the will annexed, may be granted to:

such person; or

that person’s attorney acting under a power of attorney.

For example, if the Executor named in the Will resides in California, and some or all of the assets are located in British Columbia, the Executor would appoint an attorney in British Columbia to apply for Letters of Administration with Will Annexed by Attorney. No Grant would be applied for in California.

If a foreign Grant exists, and resealing under Probate Recognition Act is possible but impractical and inconvenient, then the personal representative named in the foreign Grant may appoint a BC attorney to apply for a Grant of Letters of Administration by Attorney.

For example, a Grant is obtained in Ontario and the personal representative who is an Ontario resident does not wish to reseal the Grant in British Columbia under the Probation Recognition Act as it would be inconvenient or impossible for him to deal with assets in British Columbia. The personal representative then appoints a British Columbia resident as his attorney to apply for Letters of Administration by attorney.

Pursuant to Rule 21-5 (59), if probate or administration has been granted by a court of competent jurisdiction outside British Columbia to an Administrator in the foreign jurisdiction, and the grant cannot be resealed under the provisions of the Probate Recognition Act (for example, the jurisdiction is not one listed in the Schedule to the Probate Recognition Act), a grant of administration, limited to the estate of the deceased in British Columbia, may be made to the attorney of the personal representative appointed by the foreign court and the Order will state the specific purpose for which the Grant is obtained.

All Grants by Attorney are conditional until an ancillary Grant is applied for (which rarely happens) (see Pre-Application Procedure).

PROCEDURE

To apply for a Grant by Attorney, you must ensure that:

(1) The form of Grant is administration, even when the attorney is an Executor.



you have assembled and received the information and documentation required to enable you to apply for a Grant of Administration by Attorney. The information is basically the same as the information required for resealing a foreign grant (earlier in this Section). Please note that the documents from the foreign jurisdiction must be certified by the court out of which the foreign Grant was issued;

if there is no foreign Grant, that you have received the original Will; and

in case of an administration and if there are unpaid debts, consents from each unpaid creditor are required (see Section III A-3 Creditor’s Consent). However, the general practice is to have the administrator pay all outstanding debts to avoid having to obtain consents of creditors.

When you are in receipt of all the information and documentation, you should prepare the required documentation. In addition to the Power of Attorney, you can use the precedents for an application for a Grant of Letters of Administration (Section III B-2) or Grant of Letters of Administration with Will Annexed (Section III B-3), with the changes or additions as set out below:

Power of Attorney

See the following pages for the explanation, precedent and procedure to execute.

Notice pursuant to Section 112 of the Estate Administration Act

This notice (with the necessary amendments) must be prepared and mailed (or delivered) together with copies of:

the Will (if there is one);

copy of the foreign grant certified by Court in the originating jurisdiction; and

the Power of Attorney;

to those entitled to such notice (see the explanation opposite the relevant Affidavits in Sections III B-2 and B-3)

Requisition

You can use the precedent for this document by retrieving the Requisition corresponding to the relevant application (Grant of Letters of Administration, etc.), with the following changes:

In the Title (after Form 17), add either a reference to Rule 21-5(27) or Rule 21-5(59)(a).

Under Required:

modify document name depending on application being made: e.g. Application for a Grant of Letters of Administration by Attorney or a Grant of Letters of Administration with Will Annexed by Attorney.

N.B. If the Grant is necessary to transfer an interest in land in British Columbia, request a court-certified copy of the Grant and an office copy of the Statement of Assets, Liabilities and Distribution.

in the second section of the Requisition, show the documents filed, for example: the Will, or Grant of Probate of the Will (or: Letters of Administration) by (name of foreign Court) Court of (name of foreign jurisdiction)... and the Power of Attorney.


Certificate of Wills Notice Search

A British Columbia Will search is required to determine that you are in fact dealing with the Deceased’s last Will (i.e. the Deceased may have executed another Will after the one which was executed in the foreign jurisdiction, and may have filed a Wills Notice in British Columbia). The procedure for the search is explained in Section III A-1 of the Guide.

Affidavit of Administrator (Form 91) or Affidavit of Administrator with Will Annexed (Form 92)

This document identifies and exhibits:

the Will (if there is no foreign Grant) or, if there is a foreign Grant, the court-certified copy of such Grant (with Will Annexed); and

the Power of Attorney.

This Affidavit is set out on the following pages and is similar to the two Affidavits of Executor in Sections III B-2 and B-3.

Statements of Assets, Liabilities and Distribution (Disclosure Statement)

To complete this document, refer to instructions with respect to “Resealing a Foreign Grant” in this section.


This Affidavit is similar to the two Affidavits of Executor with respect to notice in Section III B of the Guide with the changes to the paragraph in which the items mailed or delivered pursuant to S. 112 are listed:

Notice of Intention to Apply; and

copies of the Will (if applicable) and of the foreign Grant both certified by the court that issued the Grant;

any other testamentary paper admitted to probate;

These documents are then attached as exhibits “A”, “A1” etc.

Order

The precedent for this Order, and the explanations to prepare it, are set out on the following pages.

Fees

Ascertain if payable on assets in BC or gross value of all assets.



POWER OF ATTORNEY

General Notes

This Power of Attorney should be prepared and executed before applying for a Grant by Attorney.

The “Donor” is the person who appoints the attorney and may be:

the Executor named in the Will; or

personal representative appointed by the foreign court.

Preparation

The style of proceeding and the name of the Deceased must be identical throughout all documents.

Insert these paragraphs when there is a Will but no Grant was obtained in the foreign jurisdiction.

Insert these paragraphs when a Grant has been obtained in the foreign jurisdiction.

Inset these paragraphs in all situations.

Delete the words “with the Will of the Deceased annexed” if there is no Will.

Delete one of the options depending on whether or not a bond is required.

Insert these lines if the Power of Attorney is executed in the United States of America.

If the Power of Attorney is executed before a Notary Public, prepare an Acknowledgement of Maker (see Section III A-3). If another person (not a notary public) witnesses the Donor’s signature, prepare an Affidavit of Witness (see Section III A-3).

Processing

This document must be forwarded to the Donor for execution.

Please note:

If the Power of Attorney is executed in a Province of Canada other than British Columbia, it must be signed before a Notary Public for that Province, and the Notary’s seal must be affixed.

If the Power of Attorney is executed outside Canada, the Canada Evidence Act should be referred to.




POWER OF ATTORNEY

WHEREAS:

1. (NAME OF THE DECEASED), (occupation) of (address of the Deceased) died at (location: City, Province, State, Country) on (date) leaving a Will dated (date).

or:

1. (NAME OF THE DECEASED), (occupation) of (address of the Deceased) died at (location: City, Province, State, Country) on (date) without having left any Will, codicil or testamentary document.

2. The Will appointed me (NAME OF EXECUTOR/DONOR) (occupation), as Executor (or: I am the person entitled to the administration of the estate of the Deceased).

or:

2. I, (NAME OF DONOR) (occupation) am the (describe relationship: lawful surviving spouse, nearest surviving heir-at-at law), and as such am entitled to apply for a Grant of Letters of Administration.

3. I reside at (full address).

4. I am of the full age of 19 years.

I APPOINT (FULL LEGAL NAME OF ATTORNEY), (occupation), of (address) to be my true and lawful attorney to apply to the Supreme Court of British Columbia for a grant of letters of administration with the Will of the Deceased annexed (WITH BONDWITHOUT BOND) limited to the estate of the Deceased located within British Columbia, and to do all lawful acts and deeds which may be deemed necessary or advisable, in the course of the administration of the estate until I apply for and obtain an ancillary grant of letters of administration with the Will of the Deceased Annexed.

SIGNED in the presence of: Name Address Occupation A Notary Public in and for the Province/ State of ____________________ My Commission expires

) ) ) ) ) ) ) ) ) ) ) ) )

(NAME OF DONOR)



AFFIDAVIT OF ADMINISTRATOR (Letters of Administration by Attorney)

(Forms 91 and 92, Rule 21-5(4)) General Notes

This Affidavit is similar to the Affidavit of the same name in Sections: Administration (Section III B-2) or Administration with Will Annexed (Section III B-3). The only paragraphs shown here are those that are changed.

Preparation


Include these paragraphs in all situations.

Insert these paragraphs when there is a Will but no Grant was obtained in the foreign jurisdiction.

If the Executor named in the Will was other than the surviving spouse of the Deceased, delete the words to the end of the paragraph.

If the Deceased did not marry or remarry after the date of the Will, delete the first “did/”. If the Deceased did marry or remarry after the date of the Will, delete the second “/did not”. A marriage after the making of the Will revokes the Will unless the Will was made in contemplation of such marriage. If the Will was made in contemplation of the present marriage the following should be added:

“... and the Will was made in contemplation of the marriage of the Deceased to (name of spouse).”

Insert these paragraphs when there is no Will and a Grant has been obtained in the foreign jurisdiction.

Identify the applicant and clear off any person who has an equal or prior right to apply for the Grant and refer to all renunciations or consents filed (refer to the corresponding Affidavits in Sections III B-2 and B-3).

Insert this paragraph if a foreign Grant was obtained and copy the description of the foreign Grant.

Describe the Power of Attorney (see preceding pages).

Continue with the remaining paragraphs of the affidavit (starting with “I have made a diligent search and enquiry to ascertain the assets and liabilities of the Deceased.” and ensure that they are renumbered and Exhibits “A” or “B” are referred to properly. For reasons of space, we are not showing the remaining paragraphs but the complete electronic version can be found on the accompanying CD.

Processing Attach as Exhibits to this Affidavit:

if there is no foreign Grant in the foreign jurisdiction, original Will;

if there is a foreign Grant, Court copies of the foreign Grant and the Will (if there is one), certified under the seal of the foreign court;

Power of Attorney executed under seal with an Affidavit of Witness completed and property executed.

Note: Although these documents are exhibited to the Affidavit, they are also listed separately in the Requisition.

The Affidavit must be properly dated and sworn by the Administrator before a lawyer.

The Statement of Assets, Liabilities and Distribution must always be attached as Exhibit “A”.


This is the (1st/2nd) Affidavit of

(Name) in this case and was made on (date)




AFFIDAVIT OF ADMINISTRATOR WITH WILL ANNEXED BY ATTORNEY

I, (NAME OF APPLICANT), (occupation), of (residential address), in the (City) of _____________, in the Province of British Columbia, SWEAR/ AFFIRM THAT:

1. (NAME OF THE DECEASED, WITH ALL ALIASES), (occupation of Deceased), late of (residential address of the Deceased), died on the _______ day of _________________, 20__, at (name of City).

2. I believe Exhibit “A” to this Affidavit to be the Deceased’s original last Will which is dated the _____ day of __________, 20___.

3. (NAME OF EXECUTOR) is the sole executor named in the Will. His/her appointment has not been revoked pursuant to Section 16 of the Wills Act by reason of a decree of judicial separation, divorce, or nullity granted after the date of the Will (and the Codicil) in respect of a marriage of the Deceased.

4. To the best of my knowledge, the Deceased did/did not marry or remarry after the date of the Will (and the Codicil).

5. To the best of my knowledge, the Will is not witnessed by a person to whom, or to whose then wife or husband, a beneficial devise, bequest or other disposition or appointment is given or made.

2. I have made a careful search and believe the Deceased died without having left any will, codicil or testamentary document.

3. The Deceased was married/a widow(er)/divorced/unmarried/separated and was survived by:

Name Relationship and the Renunciations and Consents of (NAMES) are filed herewith.

3. A Grant of Probate of the Will or: Letters of Administration of the estate or: Letters of Administration of the estate with Will Annexed of (FULL NAME OF THE DECEASED) was issued by (name of court) of (foreign jurisdiction) on (date) to (NAME OF PERSONAL REPRESENTATIVE/DONOR) and a certified copy of the Grant is attached as Exhibit “A” to this Affidavit.

4. By a Power of Attorney dated (date) and attached as Exhibit B to this my Affidavit (NAME OF DONOR/EXECUTOR/PERSONAL REPRESENTATIVE) appointed me to be his/her true and lawful attorney to apply to the Supreme Court of British Columbia for a grant of letters of administration (with Will annexed) (WITH/WITHOUT BOND) limited to the estate of the Deceased within the Province of British Columbia for his/her use and benefit until he/she applies for and obtains administration on his/her own behalf.



GRANT OF ADMINISTRATION BY ATTORNEY

ORDER

General Notes

For a discussion as to when this Order is applied for, see “Explanation” on the previous pages.

Preparation



The words within the brackets should be omitted if there is no Will.

The words “WITHOUT BOND” should be deleted and paragraph 2 inserted with the amount of the Bond.

Processing



No._________________ VANCOUVER REGISTRY





BEFORE


______________






1. Letters of Administration (with Will dated (date) annexed) by Attorney limited to the estate in British Columbia which by law devolves to and vests in the personal representative of (FULL NAME OF THE DECEASED), late of (address of the Deceased) who died (testate/intestate) on (date) at (location of death) be granted, WITHOUT BOND, to (NAME OF ATTORNEY), as attorney for (NAME OF THE PERSONAL REPRESENTATIVE) for his/her/their benefit and until he/she/they shall apply for an obtain (Probate/Letters of Administration) on his/her/their own behalf.

2. a Bond in the amount of $__________ be filed in a form satisfactory to the Registrar.


______________________________ Signature of


BY THE COURT

Registrar

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