Of all the post-death preoccupations of the executor, or the soon-to-be appointed administrator, the infamous notice to beneficiaries ranks last, even though it is of the utmost importance.

That is usually because the executor just wants to get on with the job and would prefer not having peering and inquiring beneficiaries looking over his or her shoulder.

But a beneficiary without notice of a personal representative's commencement of administration, is blind and therefore, vulnerable to abuse.

In addition to beneficiaries of a will are the whole gamut of persons who would benefit from an intestacy or might have a claim as a dependant, if the will does not adequately provide for them.

Upon or before applying to the court for judicial authority to act, the law of some provinces requires the applicant to advise all interested parties of the pending application.

As the Canadian Estate Administration Guide puts it, the requirement is:

"... intended to enable beneficiaries to keep an eye on the estate trustee during the administration of the estate."

Notice of ProbateUnfortunately, only some provinces have this requirement and of those that do, the points of details are confusingly different.

But not all provinces require prior or any notice of intention to apply for probate (where there is an executor) or, in the case of intestacy or where a named executor is unavailable, for letters of administration.

This wholly unsatisfactory state of affairs means that in some provinces, beneficiaries or other dependants are not formally advised of what is happening in the estate in which they have such a vital interest. It all adds up to millions of dollars in legal services as dependants of the deceased anxiously search and inquire about the estate.

Of those provinces, like Ontario and British Columbia, that do require notice, not all require that the notice include, as an attachment, the all-important will.

Ontario even allows that only an extract of the will need be provided in some instances.

The law is also irregular from province to province in terms of timing; some requiring that the notice precede the application (such as British Columbia) others, such as Nova Scotia, that it is done after the probate order is obtained.

When, as often happens, a minor is a beneficiary, notice, where one is required, has to go to the provincial Public Guardian or to some special office such as in Ontario, the Office of the Children’s Lawyer. Again, this usually means extra fees.

In British Columbia, the mere processing of such a notice by a public agency, the Public Guardian and Trustee, costs the estate a hidden tax in the processing fee of $214!

The provinces differ as to the manner of delivery of the notice as well.

Some, like Alberta, have strict requirements.

Others, like Ontario and British Columbia, require only that the notices by mailed. The probate rules of Ontario state, at §74.04(7):

"Notice under this rule shall be served on all persons, including charities, the Children’s Lawyer and the Public Guardian and Trustee, by regular letter mail sent to the person’s last known address."

In Alberta, the Rules require that notice of an intent to apply for either probate (where there is an executor) or letters of administration (where there is no will or no executor), must go to "dependants". A plethora of forms (forms Form NC 19, NC 20, Form NC 21, Form NC 6 ...) have to be waded through and the right ones selected.

It makes no sense why Alberta would subject its citizens to such complex requirements on such a straightforward requirement but it’s certainly good business those that provide legal services.

In Ontario, circa 2009, the requirement is phrased as a Notice of an Application for a Certificate of Appointment of Estate Trustee.

Not unlike Alberta, Ontario, too, has an esoteric and unfriendly form numbering system; only this time the military-like symbol is "74.7".

In  Nova Scotia, there is no requirement to send any notice to beneficiaries of an intent to apply for probate or to dependants for any proposed application for letters of administration.

But, pursuant to §44 of the Probate Court Practice, Procedure and Forms Regulations,  once the grant has been obtained, the applicant has 20 days to give notice of their appointment to "each person who may be entitled to share in the distribution of the estate".

In British Columbia, the notice requirement is substantial and among the highest in the country.

The rule of law is essentially at §112 of the Estate Administration Act. Indeed, lawyers and others conversant in probate practice in Canada’s westernmost province call the document that must be given to the Court with the probate application, a "Section 112 Affidavit":

"A court must not grant or reseal probate or letters of administration unless the applicant or the applicant's solicitor certifies that he or she has mailed or delivered a notice to each person other than the applicant who, to the best of his or her knowledge, is  a beneficiary under the will,  entitled on an intestacy or partial intestacy,  entitled to apply under the Wills Variation Act with respect to the will,  a common law spouse, or  a surviving spouse who has been separated from a deceased spouse for not less than one year immediately before the death of the deceased, and if there is a will, attached a copy of it to the notice."

In Quebec, s. 887.1 of the Code of Civil Procedure requires that:

"Where a holograph will or a will made in the presence of witnesses is probated by a notary, on the application of any interested person, the notary notifies to the known heirs and successors a notice of probate to which a copy of the will is attached. Any observations or representations which those persons wish to make must be made, orally or by any other means of communication, within 10 days after notification of the notice of probate."

For letters of administration (which the Code calls letters of verification), §894 adds that the application is "served … on all the known heirs … residing in Québec".

In New Brunswick, the Probate Rules, at §2.04:

"An application for letters of administration without will annexed shall include the names of those persons entitled to share on the intestacy and shall show whether every person having a prior or equal right to a grant of letters has consented or renounced."

In this way, but only as to applications for letters of administration, notice is implied as without the consent or renunciation of "those persons entitled to share on the intestacy", the application is incomplete.

REFERENCES:

  • Code of Civil Procedure, R.S.Q. c. C-25
  • Court of Queen's Bench Rules, Manitoba Regulation 553/88, especially Rules 74 and 75.
  • Estate Administration Act, Revised Statutes of British Columbia 196, Chapter  122
  • Greenan, J. and others, Canadian Estate Administration Guide (Toronto: CCH Canadian Limited, 2007).
  • Greenan, J., The Executor’s Handbook, 3rd Edition (Toronto: CCH Canadian Limited, 2007).
  • MacKenzie, J., Halsbury’s Laws of Canada – Wills and Estates  (Toronto: LexisNexis, 2007), pages 461-535
  • Probate Court Practice, Procedure and Forms Regulations, N.S. Reg. 119/2001
  • Probate Rules, N.B. Reg. 84-9
  • Rules Of Civil Procedure, R.R.O. 1990, Reg. 194, especially Rules 74 and 75
  • Surrogate Rules, Alta. Reg. 130/1995