Usually a Will challenge takes place after the initial application for probate. Where probate has already issued, a Will challenge may still commence (within the limitations period). A first step is “calling in” the Certificate of Appointment through a motion under sub-rule 75.05 of the Rules of Civil Procedure or an application under sub-rule 75.04 [the former deals squarely with Will challenges, the latter speaks to other considerations].

A recent case before the Trial Division of the Supreme Court of Newfoundland and Labrador explores the criteria for revocation of the already-issued Certificate. In Coombs v. Walsh (Estate), 2017 NLTD(G) 83, Justice Goulding reviewed the jurisprudence on point extensively and held as follows:

“…I am satisfied that the standard is whether there is a genuine issue to be tried and not the higher standard of whether there is a reasonable prospect of success.  However, the threshold is not so low that mere suggestion or conjecture or evidence on peripheral points will suffice.  As stated, there must be probative evidence which is material to the issues raised which has not been fully answered with uncontradicted evidence by the propounder of the Will” [emphasis added.]

Hence, there is both a legal and evidential burden that must be met. At the end of the day, the Court must balance the interest in maintaining the efficient administration of the Estate with considerations that would not allow revocation of the existing Certificate of Appointment to be used merely as a tool of obstruction.

The discussion in Walsh Estate is an easy and interesting read and I happily commend it to you for review.

Have a nice weekend everyone!

David