Court clarifies WESA notice requirement


Since BC’s Wills, Estates and Succession Act (WESA) and accompanying Supreme Court Probate Rules came into force on March 31, we have been working with our counterparts in the Probate Registry to clarify some of the new procedural requirements. One of the things we have puzzled over, relating to the timing of the beneficiary notice, has been clarified by a recent court decision.

Rule 25-2 requires notice of an intended estate grant application in Form P1 to be sent to beneficiaries, next of kin, and sometimes others, “at least 21 days before submitting for filing” the application materials. When the application materials are submitted, they must include an affidavit of delivery in Form P9. This affidavit confirms that the notice has been sent as required, but the prescribed form does not require the person making the affidavit to say when they sent the notice.

So when the Registry receives an application, they have confirmation that the notice was given, but they may not be able to tell when. In discussions within our firm we had speculated that perhaps Registry staff would not concern themselves with policing the 21 day rule, and it would instead be on the “honor system”.

However, Master Caldwell has clarified in the Davies Estate decision that the registrar must be satisfied that the 21 day notice period has passed. As a result of this decision, we are changing our practice to modify the Form P9 affidavit to include the date of mailing (variations to the prescribed forms are permitted under Rule 22-3(1)).

As an aside, I am less than thrilled with the impact of the 21 day notice requirement on the estate administration process. The underlying rationale – to give interested parties a reasonable period to respond before an application is processed – is sound. But since volume of applications prevents Probate Registry staff from reviewing most applications within 21 days in any event (the Vancouver Registry currently has a 3 month backlog), an additional 3 week wait before submitting seems an unnecessary further delay. It would make more sense if the Rules allowed the application to be submitted immediately but prohibited the Registry from issuing the grant until 21 days after the notice date. I hope that the Government will consider changing this rule in the future.