Consultation Paper on New Probate Rules

Abstract

This consultation paper is issued in connection with the Probate Rules Reform Project of the British Columbia Law Institute (BCLI).

BCLI has undertaken this project with the support of the Ministry of Attorney General because of two recent and significant legal developments. One was the enactment of the Wills, Estates and Succession Act in 2009. The other was the general reform of the rules of the Supreme Court of British Columbia that culminated in the unveiling of the new Supreme Court Civil Rules (Civil Rules) slated to come into effect in July 2010.

The current rules of court concerning probate business, namely Rules 61 and 62, were not a priority in the general reform of the rules of court and they appear largely unchanged as Rules 21-5 and 21-4, respectively, in the Civil Rules. Changes to the probate rules are needed nevertheless in order for the Wills, Estates and Succession Act to be brought into force. Those changes must be in keeping with the tenor of the rest of the Civil Rules. Additional reasons for reforming the probate rules appear in Part One of this consultation paper.

The Project Committee’s approach to reform of the probate rules was fourfold. First, there would be an attempt to design an optimal procedure instead of simply improving on the existing one. Second, aspects of probate procedure would not be retained for purely historical reasons. Third, in recognition of the fact that unrepresented persons initiate much probate business, procedures would be simplified where possible. The revised probate rules would provide more explicit guidance than Rules 61 and 62 now do. Fourth, differences between procedures in probate matters and general civil procedure would be harmonized to the extent possible and old anomalies removed.

Part One of the consultation paper explains the background to the procedural re-forms that the proposed rules would introduce. Part Two contains the proposed rules and commentary. Following the general format of the Civil Rules, the proposed rules take the form of subrules grouped under one principal rule that would be numbered 21-4. As the proposed rules abandon the present contentious / non-contentious classification of probate business, division of the subrules between two principal rules of court was not seen as necessary.

The proposed rules in Part Two are intended to accommodate a system in which a single court file for the estate would be opened when the first filing (typically an application for a common form grant) is made. Contested matters that currently must be pursued in separate actions with different court files and file numbers, such as probate in solemn form and revocation, would be initiated instead by interlocutory application within the single estate file. The procedure in each case would be only as elaborate as necessary to resolve the particular matter, ranging from an ordinary chambers argument to summary trial on affidavits to a regular civil trial with oral evidence.

Keywords: wills estates & life planning, Rules of Court, Probate Rules, courts & tribunals, administration of estates, Succession Law Reform Project