Revocation of a Grant of Probate

Revocation of a Grant of Probate

Desbiens v Smith Estate, 2010 BCCA 394 is the leading case in British Columbia on the revocation of a grant of probate and was followed in Al-Sabah Estate, 2016 BCSC 1781. The basis of this decision was of the improper service of the application for the grant of probate on the testator’s estranged children, in accordance with s. 112 of the Estate Administration Act. The Estate Administration Act has since been incorporated into the provisions of the Wills, Estates and Succession Act, SBC 2009, c 13. The term revocation is synonymous with terms “to set aside” or “to recall.”

Desbiens v Smith Estate, 2010 BCCA 394

In this case, the testator, Charles Smith, died in March 2004, leaving his widow, Angele Smith, and three adult children. Throughout his life, Mr. Smith had not maintained a relationship with his children, despite their attempts to stay in contact with him. Mr. Smith’s lawyer was executrix of the will and was granted probate in January 2005. The executrix initially believed that Mr. Smith did not have children, but later discovered that there may be a possibility that they existed when she spoke with his sister and found three names in Mr. Smith’s address book. The executrix attempted to notify the children of probate by assuming that all three children had kept the surname “Smith” 

and that their addresses as shown in the book were current. Unfortunately, none of the notices reached the children and none of them were returned to the executrix. The distribution of the Estate was completed in January 2006.

In March 2007, one of the children, Charles Smith Jr., attempted to contact Mr. Smith but found that the telephone number was out of service. He then called Mrs. Smith and learned for the first time that Mr. Smith had died three years earlier. Charles Smith Jr. proceeded to immediately inform his sister of the news.

The Legislation

Section 112 of the Estate Administration Act, RSBC 1996, c 122, requires that notice be mailed and delivered to each person other than the applicant that is, to the best of the applicant’s knowledge, entitled to an intestacy or partial intestacy, to entitled to apply under the Wills Variation Act with respect to the will, and if there is a will, attach a copy of it to the notice. The applicant must certify that this requirement has been fulfilled before probate is granted. The words “mailed” and “delivered” are defined in s. 29 of the Interpretation Act, RSBC 1996, c 238. If a person who is entitled to notice is dead or the person’s whereabouts is unknown, the applicant may apply under s. 112(3) of the Estate Administration Act for an order dispensing in whole or in part with the requirements of subsection (1).

The Notice Requirement

[28]     In any event, I am not persuaded by Ms. Bernacki’s argument that an executrix need not make inquiries to satisfy herself that a “last known address” remains current. The notice requirement in s. 112 is a functional one – it is not a meaningless pro forma exercise. It is designed to ensure that the persons listed receive notice of probate. That function will not be fulfilled unless reasonable inquiries are made to ensure that the notices are sent to the correct addresses.

[29]    Many of the statutory provisions that adopt a “last known address” formulation form part of regimes where there is an expectation or requirement that the recipient keep the sender informed of changes of address. In the case of s. 112 of the Estate Administration Act, intended recipients have no duty to keep the intestator or the executrix apprised of their addresses.

[33]    I do not suggest that executors and administrators face onerous requirements in determining the addresses of persons entitled to notice under s. 112 of the Estate Administration Act. All that is required is that the person giving notice exercise reasonable diligence in ascertaining the recipient’s addresses. In cases where, having exercised reasonable diligence, they still do not have confidence that they have obtained correct addresses, they must be fully candid in their affidavit in support of probate, and, in appropriate cases, should make application under s. 112(3) of the Act.


[34]    In the case before us, no effort was made to ascertain whether the addresses that were used were accurate. The information available to MS. Bernacki could not have given her any confidence that they were; she understood that the testator had not had contact with the plaintiffs for many years (indeed, she appears to have been under the impression that he had had even less contact with them than was the case).

Setting Aside the Grant of Probate and the Court’s Jurisdiction

[44]    Section 112 of the Estate Administration Act, in its terms, requires a person seeking probate or letters of administration to certify that he or she has mailed notices to various persons who might have claims under the will, on intestacy, or under the Wills Variation Act. If a person fraudulently certifies that he or she has done so, it seems clear that the fraud would vitiate the grant of probate or of letters of administration. If, however, as here, the certification is an error, but not deliberately so, is there any remedy?


[61]    Probate is, strictly speaking, the proof of the deceased’s will.  In granting probate, ecclesiastical authorities (and, later, common law courts) certified that a document proffered as the deceased’s last will was what it purported to be. A grant of probate, however, has always had ancillary purposes as well.  A court granting probate examines not only the authenticity of the will, but also its validity (both in terms of formalities of execution and capacity of the testator) and the legal capacity of the person appointed as executor to act as such.


[62]    Courts have jurisdiction to revoke grants of probate where evidence discloses that the grant ought not to have issued. There are numerous grounds on which probate can been revoked:  e.g., where subsequent wills have been discovered; where it has been found that the will is otherwise invalid; where it has been determined that the testator is not, in fact, dead; where it is shown that the executor is under a legal disability (minority or mental infirmity); and where probate has been obtained by fraud.  In short, where it is shown that a condition precedent to the grant of probate was not fulfilled, the court has jurisdiction to revoke the grant (I leave aside the complicated issue – which does not arise in this litigation – of the scope of jurisdiction to revoke a grant where probate has been in solemn form).

[63]    While it arises in the context of letters of administration rather than probate, the common law requirement that an administrator, before applying for a grant, “cite” any executor and anyone having a closer kinship relationship to the deceased is analogous to the notice requirement in the Estate Administration Act


[65]    The jurisdiction of the probate court to revoke a grant of administration is quite broad, though it is to be exercised sparingly…


[66]    With the enactment of dependent’s relief and wills variation legislation, a grant of probate (or of administration with will annexed) was given an ancillary purpose that was not present in ecclesiastical or common law: that of ensuring that all persons entitled to apply for relief under such legislation had notice that the estate was being administered.  Where that purpose is not fulfilled, an important condition precedent for the grant is absent.


[67]    The six-month limitation period under the Wills Variation Act is measured from the date that probate is granted for good reason.  That is the date on which the court has signified that it is satisfied (by virtue of the requirements of s. 112 of the Estate Administration Act) that reasonable efforts have been made to notify persons having rights to apply under the Wills Variation Act.


[68]    Where reasonable efforts to comply with s. 112 of the Estate Administration Act have not been made, probate should not issue. Where a grant of probate has issued notwithstanding a failure to comply with s. 112 of the Estate Administration Act, the Supreme Court has jurisdiction to revoke the grant, just as it would have if another condition precedent to the grant of probate had not been satisfied.

When Should the Grant of Probate be Revoked?

At paragraph 70, the court determined that the following questions must be considered in deciding whether to revoke the grant of probate:

• Are the plaintiffs correct in asserting that revocation would affect the limitation period for the bringing of the action under the Wills Variation Act?

• If so, would the result treat the plaintiffs unduly favourably?

• Is the plaintiff’s claim of sufficient merit to justify revocation of the grant?

• What would be the effect of revocation on transactions that have already taken place?

• Would third parties be prejudiced?

• Would the executrix or the beneficiary suffer inequitable treatment if probate was revoked?

[74] In considering whether it is appropriate to revoke the grant, the court must consider whether, by doing so, it is acting in a manner that is unduly favourable to the plaintiffs. The limitation period for the bringing of an action under the Wills Variation Act is six months from the date that probate is issued. The court ought not, by revoking the original grant, allow the plaintiffs to bring their action more than six months from the earliest date that probate could have issued. It is necessary, therefore, to consider whether revoking the original grant would have that effect in this case.

In making this consideration, the court described a timeline in which probate would have been granted following notice to Mr. Smith’s children in March 2007. It was determined that the date the action was commenced was brought within six months of the earliest date in which probate ought to have properly been issued. Therefore, an order revoking the original grant of probate would not be unduly favourable to the children from the standpoint of the limitation period.

Estate Litigation Lawyer Angela Price-Stephens

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