Most estate lawyers are already familiar with the Notice of Objection to the Issuance of a Certificate of Appointment of Estate Trustee, a document that operates to prevent a probate application from successfully being filed with the court. Fewer may be aware that there is another option for individuals who wish to remain updated of the status of the filing of a probate application or other proceeding commenced in respect of an estate but do not, necessarily, object to the appointment being sought and/or the administration of an estate in accordance with the last will and testament.
Rule 74.03 of the Rules of Civil Procedure describes a Request for Notice of Commencement of Proceeding. Such a document, in Form 74.3, may be filed by any individual who appears to have a financial interest in an estate and will allow him or her to receive notice of any proceeding that is made in respect of the estate, including the filing of a Notice of Objection or a probate application.
A Request for Notice of Commencement of Proceeding typically expires after three years (in which case a subsequent Request may be filed) and does not apply to proceedings that are initiated after a Certificate of Appointment has been issued.
Filing a Request for Notice may be a good option for beneficiaries who wish to be apprised of any developments in the early stages of the administration of an estate (at least in situations where probate or other court proceedings are required) without objecting to the issuance of a Certificate of Appointment. The ability to receive such updates may be especially beneficial in situations where there may is no communication with a named estate trustee or updates on the status of probate are not otherwise forthcoming.
In January 2016, a similar form in respect of applications to pass accounts was introduced through an amendment to the Rules of Civil Procedure. As previously discussed on our blog, a Request for Further Notice in Passing of Accounts allows an individual entitled to service of an application to pass accounts to receive notice of any further step in the application, without the need to file a Notice of Objection to Passing of Accounts, which had been previously required in order to retain the ability to respond to the proceeding at a later stage.
Forms like these allow for a class of participants in pre-probate proceedings and applications to pass accounts who may not want to become actively involved, but nevertheless wish to remain updated of any developments.
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Earlier this week I blogged about the recent changes which came into effect on January 1, 2016 concerning Applications to Pass Accounts, and the impact that the revised deadlines may have upon our daily practice. In addition to altering certain of the deadlines relating to Applications to Pass Accounts, the recent amendments to the Rules of Civil Procedure have also created a new “class” of participant in the Application to Pass Accounts process.
Up until January 1, 2016, if you were a beneficiary who was served with an Application to Pass Accounts, you had one of two choices: (1) serve and file a Notice of Objection to Accounts and formally participate in the Application to Pass Accounts; or (2) do nothing and allow the Application to Pass Accounts to proceed without any further notice being given to you. While filing a Notice of Objection to Accounts may seem fairly straightforward if a beneficiary has actual concerns relating to the accounts in question, it may seem a blunt instrument if the only relief which the beneficiary in question desires is to have formal notice of how the Application to Pass Accounts is proceeding.
The revised rule 74.18(8) provides for the creation of a new “class” of participant in the Application to Pass Accounts process, providing for the creation of what is known as a “Request for Further Notice in Passing of Accounts” (Form 74.45.1). By serving and filing a Request for Further Notice, the beneficiary in question will be entitled to receive notice of any further step in the Application, receive any further document in the Application, file materials relating to costs, and, in the event of a hearing, will be entitled to be heard at the hearing, and examine or cross-examine any witness, in relation to any request for increased costs.
Notably, in the event that a beneficiary does not file a Notice of Objection to Accounts or Request for Further Notice, the revised rule 74.18(8.2) provides that the beneficiary in question is not entitled to notice of any further step in the Application, to receive any further documentation in the Application, to file material of their own in the Application, or to be heard at the hearing, or examine or cross-examine any individual at the hearing (subject to a contrary Order of the court).
A “Request for Further Notice in Passing of Accounts” must be served and filed at least 35 days prior the hearing date specified in the Notice of Application, which is the same timeframe contemplated for the service and filing of a Notice of Objection to Accounts in accordance with rule 74.18(7).
Today on Hull on Estates, Jonathon Kappy and Josh Eisen discuss the issue of standing to object to a will and motions to have notices of objection removed.
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A recent decision from British Columbia, Desbiens v. Bernacki, 2008 BCSC 696 is a good reminder that a limitation period is a shield, not a sword.
In Desbiens, the deceased had four children from a first marriage. After his first wife left him, he placed three of his children in foster care; one child was adopted. The deceased never provided financially for his children. He eventually married his second wife. His Will left his entire estate to his second wife. His executrix later learned of the existence of the four children and found addresses for them among the deceased’s belongings. She mailed notices in the form prescribed by British Columbia’s Estate Administration Act, along with copies of the Will. None of the children received the notices, as the addresses were outdated. The executrix did not apply to the court for directions and apparently took no active steps to verify the addresses or the current whereabouts of the children. Three years after the deceased’s death, three of the children commenced an pplication under British Columbia’s Wills Variation Act. The executrix and second wife sought to have their application dismissed, on the basis that the limitation period had expired.
The Court ultimately concluded that the executrix and the second wife were estopped from invoking the limitation period defence. The Court held that the executrix did not meet the statutory degree of diligence required when giving notice and failed to "deliver" the notices as required by the Estate Administration Act. Simply mailing the notices to unconfirmed addresses was insufficient, and the executrix should have made reasonable inquiries into the current whereabouts of the children.
Have a great day!
Bianca La Neve
Listen to Preparing for Trials in the Context of Contested Passing of Accounts
In this podcast, Craig Vander Zee and Paul Trudelle discuss trial preparation considerations in the context of a contested passing of accounts.