There are so many things to think about when a family member passes away. In addition to processing the grief and loss of a loved one, there are many practical matters that need to be considered and dealt with. Locating the Will is one of the first priorities, as it sets out who has the authority to handle the deceased’s affairs and also dictate how assets are to be divided. If there is a Will, one of the next steps is for the named executor to apply for a grant of probate. If there is no Will, often a family member will apply for a grant of administration. Applications for estate grants usually proceed without too much difficulty, but what can you do if you have a serious concern about the application for an estate grant?
The new court rules that came into effect along with the Wills, Estates and Succession Act allows interested parties to dispute the issuance of an estate grant by filing a Notice of Dispute with the court. The Notice of Dispute prevents the court from issuing an estate grant until the Notice of Dispute is cancelled, withdrawn, or is overridden by another court order. If no action is taken, it will expire after a period of one year.
Who can file a Notice of Dispute?
A Notice of Dispute can only be filed by a person who is entitled to get notice of an application for an estate grant in the first place. Most commonly, this includes:
• Any executors or alternate executors named in the Will;
• All beneficiaries named in the Will;
• Anyone who would be entitled to share in the estate if there was no Will (typically spouses and children, but could also include grandchildren or other extended family depending on the circumstances).
For a full list of those entitled to notice, see Rule 25-2(2) of the Supreme Court Civil Rules.
Why file a Notice of Dispute?
There must be a valid reason to file a Notice of Dispute. Examples of grounds for filing a Notice of Dispute include, but are not limited to:
• The Will is invalid;
• The Will is not the correct Will;
• The person who is applying for the estate grant is not the proper person.
If you have reservations about an application for an estate grant and are not sure whether your concerns would be valid grounds for filing a Notice of Dispute, you should seek legal advice to understand your options.
What does a Notice of Dispute look like?
A Notice of Dispute must be in the proper form in order to be accepted and properly filed. Click here (link to add: http://www.ag.gov.bc.ca/courts/forms/probate/P29.pdf ) to see a copy of the court form.
When does a Notice of Dispute need to be filed?
A Notice of Dispute must be filed before the earlier of the issuance of an authorization to obtain estate information** or an estate grant. If you receive notice that a person is applying for an estate grant and you oppose the application, you should seek legal advice right away. Note that a person is only allowed to file one notice of dispute in relation to an estate.
Notices of Dispute were created in order to reduce the possibility of delays in estate matters. Due to the time limits involved, they encourage parties to either file a court action regarding the estate, or settle the Will within the one year that the Notice of Dispute is in effect.
** If the person applying for an estate grant does not have information about the deceased’s assets and liabilities, the court can issue an “authorization to obtain estate information”. Although this authorization is not discussed in detail above, a Notice of Dispute can be used to oppose the granting of an authorization to obtain estate information as well.