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Elder Abuse Estate Litigation Lawyers

Maclean Law’s estate litigation lawyers know that disputes often arise with respect to entitlement to a share in an estate, or management and distribution of an estate. Where a dispute arises, it may be necessary to proceed quickly in order to preserve assets or prevent the appointment on an unsuitable executor or administrator. Nick Davies, head of the MacLean Estate Litigation’s unfair Wills team explains this can be done through a Vancouver Probate Dispute Notice.

Vancouver Probate Dispute Notice Call 1 877 602 9900

In many cases, it will be possible to commence a proceeding and obtain an injunction. That process requires time and a significant amount of paperwork. Time may not be available if the situation is urgent. The alternative is to file Notice to Dispute under Rule 25(10) of the Supreme Court Rules. A Notice of Dispute is a brief document which takes little time to prepare and file.

Once a Vancouver Probate Dispute Notice is filed, the Probate Registry must not proceed with a probate application, effectively preventing the appointment of a trustee or administrator. The Notice of Dispute remains in effect for one year unless it is renewed or removed, or the will is proved in solemn form.

A party wishing to contest the issuance of a grant of probate or administration may file a Vancouver Probate Dispute Notice under Rule 25 (10) of the BC Supreme Court Rules.

Vancouver Probate Dispute Notice Call 1 877 602 9900

While a notice to dispute is in effect, the registrar must not issue an estate grant. The court may, on application by a party, remove the Vancouver Probate Dispute Notice if the court determines that the filing is not in the best interests of the estate. A notice of dispute is in effect for one year after the date of filing unless renewed or removed by order of the court or the will is proved in solemn form. 

A party who believes the Notice of Dispute has no merit may apply to remove the Vancouver Probate Dispute Notice.  The application is brought in the usual manner by a Notice of Application with supporting affidavits.  The Court will remove the Notice of Dispute if it determines that the Notice of Dispute “is not in the best interests of the estate”.  The question then becomes how to determine what is in the best interests of the estate.

Vancouver Estate Litigation Lawyers Call 1 877 602 9900

This question was considered in Richardson Estate (Re), 2014 BCSC 2162. In that case the brother of the deceased disputed that the applicant for probate was the common law spouse of the deceased. If the applicant was not the spouse of the deceased, the estate would go to the brother rather than the applicant. Mr. Justice Steeves first carefully and exhaustively reviewed the cases which consider when a relationship is a “marriage-like relationship”. Many of these cases were in the context of family law proceedings, illustrating again the significant overlap between estate litigation and family law.

Mr. Justice Steeves concluded that the deceased and the applicant were in a marriage-like relationship and thus were spouses.  He then turned his mind to how the Court ought to consider whether a Notice of Dispute is in the best interests of the estate and he removed the Vancouver Probate Dispute Notice:

 [58]        As can be seen above, the new language in Rule 25-10(11) describes removing a notice of dispute and whether that would be in the “best interests of the estate.” In my view this is broad language and with a substantially different objective than the previous Rule. Instead of a focus on the nature of the pleadings under the previous Rule, the focus now is on the estate and what is in its best interest.

 [59]        It is submitted on behalf of the disputant that the test to be applied to this new language is a three stage test: does the disputant have standing to challenge the will or appointment of an administrator without a will; is there a reasonable claim or a legitimate issue to be contested; and is the removal of the notice of dispute consistent with protecting the integrity of the probate and administration process? There is considerable overlap between this approach and the approach under the former Rule 19(24) inasmuch as both focus on the merits of the dispute and the process of probate and administration. Those matters may in some circumstances be relevant to determining the best interests of the estate. However, the best interests of the estate is broader language and capable of including other issues.

Justice Steeves concluded there was no economic or other reason to allow the Notice of Dispute to remain once he found that the applicant was in fact the spouse of the deceased, and was entitled to receive the estate: 

[68]         The above conclusion also means that that the notice of dispute has been conclusively answered and it should be removed. It would not be in the best interests of the estate to somehow advance litigation that has been conclusively decided by the decision that the applicant was the spouse of Mr. Richardson. In addition, as an economic matter considered with the value of the estate, proceeding on a spent dispute would not be in the best interests of the estate.

In the Richardson Estate case, the applicant placed a significant amount of affidavit material before the Court to support her argument that she was in fact the spouse of the deceased. 

Call Nick Davies 1 877 602 9900

MacLean Law’s estate litigation lawyers know that the success of applications of this nature depends on a sound knowledge of the law supported by compelling facts evidenced by affidavits that are exhaustive and are carefully drafted. Call Nick Davies today at 1 877 602 9900.