Grant of Probate – Notifying the Common Law Spouse

Grant of Probate – Notifying the Common Law Spouse

It is important to provide notice of an application for a grant of probate to all persons entitled. While Rule 25-2(2) of the Supreme Court Civil Rules lists such persons, the common-law spouse can provide uncertainty, especially in cases where the evidence of such a relationship is unclear. However it has been established that where the status of a common-law spouse is at issue, notice under s. 112(1) of the Estate Administration Act (now s. 121(1) of the Wills, Estates and Succession Act) must be given, and failure to do so precludes reliance on the 6 month limitation period provided for in s. 3(1)(a) in the Wills Variation Act (now s. 61(1) of the Wills, Estate and Succession Act).

Section 121(1) of the Wills, Estates and Succession Act, SBC 2009, c 13, directs an applicant for a grant of probate or administration to notify the persons referred to in the Supreme Court Civil Rules of their application.

Rule 25-2(2) of the Supreme Court Civil Rules provides the following:

(2) The documents referred to in subrule (1) must be delivered to the following persons:
(a) if the deceased left a will, each of the following who is not a person by whom or on whose behalf the documents referred to in subrule (1) are to be delivered (a person by whom or on whose behalf the documents referred to in subrule (1) are to be delivered is, in this subrule, called an “intended applicant”):
(i) each person
(A) who is named in the will as executor or alternate executor,
(B) whose right to make an application for an estate grant in relation to the deceased is prior to or equal to the intended applicant’s right to make that application, and
(C) who is alive at the time of the deceased’s death;
(ii) each beneficiary under the will who is not referred to in subparagraph (i) of this paragraph;
(iii) each person
(A) who, under Division 1 of Part 3 of the Wills, Estates and Succession Act, would have been an intestate successor if the deceased did not leave a will and the estate exceeded the preferential share of the spouse as described in section 21 (2) to (5) of that Act, and
(B) who is not referred to in subparagraph (i) or (ii) of this paragraph;

(b) if the deceased did not leave a will,
(i) each person who, under Division 1 of Part 3 of the Wills, Estates and Succession Act, is an intestate successor of the deceased or would have been an intestate successor if the estate exceeded the preferential share of the spouse as described in section 21 (2) to (5) of that Act, and
(ii) each creditor of the deceased whose claim exceeds $10,000 and who is not referred to in subparagraph (i) of this paragraph;

(c) if the deceased was a Nisga’a citizen, the Nisga’a Lisims government;

(d) if the deceased was a member of a treaty first nation, the treaty first nation;

(e) any other person who, by court order under subrule (14) (a), is to receive notice;

(f) any person not referred to in paragraph (a), (b), (c), (d) or (e) of this subrule who has served a citation on the intended applicant in relation to the deceased.

In some circumstances, the common-law spouse may be overlooked by the executor or administrator of an estate as an individual entitled to notice of the application for probate on the grounds that they believe the relationship was not a true marriage-like relationship. The following British Columbia Supreme Court cases support the position of the common law spouse and their entitlement to notice. In both cases, the grant of probate was revoked.

Shaw v Reinhart, 2004 BCSC 588

In this case, the plaintiff commenced an action under the Wills Variation Act approximately 10 months after the defendants were granted probate. The plaintiff alleged that she had been the deceased’s common law spouse at the date of his death and had not received notice of the application for probate. The defendants argued that they took the position that the deceased did not have a common law spouse at the date of his death. Accordingly, the defendants brought an application to strike the claim as having been brought outside the 6 month limitation period.

[21]   The plaintiff is asserting a claim under the Wills Variation Act as a common-law spouse.  The validity of her claim is a matter for trial.  In my opinion, however, it was not for the applicants to assume that such a claim would not succeed and to distribute the estate without providing her with the notice required under the Estate Administration Act.

[22]       The Estate Administration Act is silent as to the remedy for failure to provide notice.  The submissions I received are that one

 remedy is to recall the Grant of Letters Probate.  Recalling the Grant of Letters Probate might require the applicants to reapply for a Grant of Letters Probate, which would create a new limitation period of benefit to the plaintiff.  If the applicants did not reapply for a further grant, and they might consider that such is not necessary given that the estate of Edwin Reinhart may already have been fully distributed, the recall of the Grant Letters Probate might permit the plaintiff to seek a remedy directly from the applicants.

Somodi v Szabados, 2007 BCSC 857

In this case, the executor and sole beneficiary under the will was the deceased’s son. He refused to acknowledge the plaintiff as having been the common-law husband of the deceased and instead claimed that their relationship was one of landlord and tenant. As such, he did not provide the plaintiff with notice of the application for probate and the plaintiff commenced his action under the Wills Variation Act more than 2 years after the executor received the grant of probate.

[69] It is the plaintiff’s position that where the status of a common-law spouse is at issue, notice under s. 112(1) must be given and where it is not, the defendant is estopped from relying on the limitation defence provided for in s. 3(1)(a) of the WVA.

[70]    In Shaw v. Reinhart…, Shabbits J. concluded that where the status of a common-law spouse is at issue, notice under s. 112(1) of the Estate Administration Act must be given and failure to do so precludes reliance

on the limitation period under s. 3(1)(a) of the WVA.  In that case, Shabbits J. granted the plaintiff leave to amend her claim to seek to have the grant of letters probate set aside and “leave to amend to seek recovery of that, if anything, to which she was entitled under the Wills Variation Act …”.

[71]    On the basis of the reasoning in Shaw v. Reinhart, I would not give effect to the defendant’s limitation plea in the present case.

Estate Litigation Lawyer Angela Price-Stephens

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