November 2021

In most cases when a person dies, the deceased leaves an estate that must be administered. Suppose you have concerns about the person or people who are applying to administer an estate. One can dispute an Estate Grant by filing a Notice of Dispute.

  • 1) How do you tell the court that you disagree with someone who has filed for a grant of probate in the estate of a deceased person? 

An Estate Grant given by a court essentially gives administrators or executors the “green light” to administer a deceased’s estate. To get an Estate Grant, executors or administrators of an estate must file the appropriate documents to receive a grant of probate, a grant of administration or an ancillary grant of administration.

When an executor or administrator of an estate applies for an Estate Grant, some other person who is not content with this application can object. This person, called the disputant, may be entitled to dispute the application for an Estate Grant by filing a Notice of Dispute, which, once filed, prevents the issuance of an Estate Grant.

Disputants can file a Notice of Dispute for a variety of reasons, including, but not limited to, issues regarding the validity of the deceased’s will or because the applicant applying for the Estate grant is not qualified to administer the Deceased’s Estate.

The Notice of Dispute must be filed after the Deceased’s date of death, but before the earlier of:

  • the issuance of an authorization to obtain estate information, and
  • the issuance of an Estate Grant.

If you miss the deadline to file your Notice of Dispute, you may be unable to oppose the Estate Grant at all. It is critical to be aware of when these deadlines occur.

  • 2) How do you know if you are entitled to file a Notice of Dispute? 

If you are entitled to notice of an application for an Estate Grant then you are entitled to file a Notice of Dispute. So who is entitled to notice? When an applicant files an application for an Estate Grant, the applicant must do so in accordance with the Supreme Court Civil Rules. Rule 25-2(2) of the Supreme Court Civil Rules tells us who is entitled to notice of an application for an Estate Grant:

If you are entitled to notice of an application for an Estate Grant then you are entitled to file a Notice of Dispute. So who is entitled to notice? When an applicant files an application for an Estate Grant, the applicant must do so in accordance with the Supreme Court Civil Rules. Rule 25-2(2) of the Supreme Court Civil Rules tells us who is entitled to notice of an application for an Estate Grant:

  • (a) if the deceased left a will:
  • (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;

It is worth noting that those not entitled to notice of an application for an Estate Grant can file a Notice of Dispute if they get approval from the court to do so.

If you are not sure whether you are entitled to file a Notice of Dispute, we encourage you to contact our Estate Planning & Litigation Practice Group to assess your evidence as soon as possible. Your lawyer would need to assess your evidence and determine whether it is necessary to obtain a court order to file a Notice of Dispute.

  • 3) Things you should know before filing your Notice of Dispute! 

Our Estate Planning & Litigation Practice Group encourages disputants to obtain legal advice before filing their Notice of Dispute. Here are some tips we often remind our own clients:

  • (a) The deadlines to file the Notice of Dispute are concrete. If you miss the deadline, your Notice of Dispute will not be accepted.
  • (b) Once your Notice of Dispute has been filed, you only have one chance to easily amend the Notice of Dispute. Any further amendments will require an application to the court.
  • (c) The Notice of Dispute must be filed in a particular form set out by the court. This form requires certain information, including the basis on which the Estate Grant is being opposed.
  • (d) Once your Notice of Dispute is filed, the Notice is only valid for one year, unless it withdrawn, removed by court order, renewed or the will is proved in solemn form.
  • (e) The Notice of Dispute must be filed in the best interests of the estate. Neutrality and fairness are often considered some of the most important factors in deciding how to handle a dispute between parties claiming an interest in the estate.
  • (f) The Notice of Dispute can itself be challenged by other individuals who claim an interest in the estate, so it is important that the steps are followed carefully.

Estate litigation can be acrimonious and emotional, so the right guide is essential. If you are concerned about a situation regarding an estate matter, please contact any member of our Estate Planning and Litigation Practice Group for more information and assistance.

This article is intended to be an overview of the law and is for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Rather, readers should obtain specific legal advice in relation to the issues they are facing.  

 
Givon Santos
Associate | Estate Planning and Litigation group
Langley | Vancouver
Justin W. Hamilton
Associate | Estate Planning and Litigation group
Langley | Vancouver