 |
 |
 |
 |
  |
 |
 |
 |
Caveats and citations are useful and powerful tools in probate practice. While I believe that most practitioners are familiar with the form and use of caveats, I suspect that many more are not familiar with the four citations that are provided for under our Rules of Court. The purpose of this paper is to review caveats and citations so that the practitioner will be more familiar with just how powerful these tools can be in one's probate practice. A caveat is a notice in writing to the court, signed by the party entering it, or by his or her solicitor, requesting that nothing be done in the estate of the deceased without notice to the party lodging the caveat, or his or her solicitor, if the caveat is entered by a solicitor. A caveat is usually entered as a preliminary step to a contest as to the validity of a will, or the right to a grant of probate or administration. A caveator is required to state in the caveat the nature of his or her interest in the assets of the deceased's estate and the grounds upon which the caveat is entered. Generally speaking, any bona fide claim to a share in an estate should support the caveat. "A caveat is not a notice to any opponent in particular. It is a notice to the registrar or officer of the court not to let anything be done by anybody in the matter of the will, or the goods of the deceased, without notice to the person who lodges the caveat." (See Moran v Place, (1896) P.214 at 216 (C.A.) CAVEATS ARE GOVERNED BY RULES 61 OF THE RULES OF COURT, WHICH STATE AS FOLLOWS: 61 (34) - A person intending to oppose the issue of a grant of probate or administration shall, in any registry of the court, file a caveat in form 75. 61(35) - The registrar in whose registry a caveat has been filed shall forthwith notify the registrar at Victoria who shall forthwith notify all other registrars in the province. 61(36) - Contents of caveat - the caveator must declare in the caveat the nature of his interest in the property of the deceased, and state generally the grounds upon which the caveat is entered. The caveat shall be signed by the caveator, or by the caveator's solicitor, and shall state an address for delivery in accordance with rule 4. 61(37) - Time caveat in force - subject to subrule (42), a caveat remains in force for six months after been filed, unless it is sooner withdrawn by notice filed by the caveator, and then it expires and is of no effect, but by order of the court, it may be renewed from time to time. 61(38) - No grant while caveat in force - no grant of administration or probate shall be made while caveat is in force. 61(39) - Notice to caveator - a person intending to apply for probate or administration or claiming an interest in an estate with respect to which a caveat has been filed, may follow notice to caveator in form 76 in the registry in which the caveat was filed, and shall deliver a copy to the address for delivery set out in the caveat. 61(40) - Contents of notice- the notice to caveator shall state the name and interest of the person on whose behalf it is issued and, if that person claims under a will or codicil, shall also state (a) the date of the will or codicil, and (b) the person's address for delivery to which rule 4(6) applies. 61(41) - Appearance to notice- an appearance to a notice to caveator shall be in form 7. 61(42) - Effect of failure to appear to a notice- where a notice to caveator has been filed and a copy delivered to the caveator and no appearance has been filed within the time stated in the notice, the registrar shall cancel the caveat and notify the registry at Victoria. THE EFFECT OF A CAVEAT The filing of a caveat ensures that the caveator will receive notice if an application for a grant of probate or administration is made. The caveat is filed after death but before a grant has been issued. The filing of the caveat effectively stays proceedings in the estate and, inter alia, allows the caveator time to investigate matters and to decide whether or not to commence litigation proceedings concerning the estate. When an application for a grant is made while there is a valid caveat lodged in the registry file, the registry will then notify both the caveator and the applicant as to the status of the matter. A grant cannot issue while the caveat remains in force. FORM AND FILING A caveat may be filed in any registry by a person intending to oppose a grant of probate or administration. The registrar of that registry then notifies all other registrars throughout the province. A caveat shall be in form 75. Rules 61(36) states that the person filing the caveat must declare in the caveat the nature of his or her interest in the property of the deceased, and must state generally the grounds upon which he or she enters the caveat. The filing fee is currently $73.00. CANCELLATION As a stated above, rule 61(39) provides that where a person intends to apply for probate or administration, or who claims an interest in an estate with respect to which a caveat has been filed, can try to remove the caveat by filing a Notice to Caveator in form 76. The notice must be filed in the same registry in which the caveat was filed and then, must be delivered to the address for delivery set out in the caveat. Rules 61(40) aforesaid states what must be contained in the notice to caveator. Rules 61(42) states that if an Appearance is not filed within the seven days, the registrar shall cancel the caveat and notify the registrar at Victoria of the cancellation. If the caveator wishes to withdraw the caveat, this can be done by the preparation and filing of a withdrawal of caveat. LAPSE AND WITHDRAWAL Rule 61(42) provides that the caveat expires after six months unless it is withdrawn by notice filed by the caveator or renewed by order of the court. It may also be possible to simply just file another caveat rather than seeking a court order to renew the caveat. Once an appearance to a Notice to Caveator has been filed, the current practice of the registries is to treat the caveat as permanent and removable only by the following methods: a court order; a consent order under rule 41(16); or under rule 10(2) where probate or administration has been granted in another proceeding. The decision of Re Benner Estate; Hetherington v McLeod, (1991) B.C.D. Civ. 4221-01, suggests that where a caveat is not going to lapse or be withdrawn, and the propounder of a will wants to obtain a grant of probate, then he or she must issue a writ under Rule 62 seeking a grant and cancellation of the caveat. The filing of the appearance to a notice to caveator has the effect of converting the probate matter from that of non-contentious matters under rule 61, to contentious matters under rule 62. Withdrawal of the caveat does not bar the caveator from subsequently contesting an application for a grant of probate or administration. The Rules of Court provide for various orders of assistance that can be used in the course of administration to assist the personal representative or the beneficiaries to resolve outstanding matters in a timely fashion. These are generally referred to as citations, and a citation is simply a summons. The Rules of Court provide for four types of citations for use in pre grant proceedings: A. A citation to accept or refuse probate; B. A citation to propound an alleged will; C. A citation to bring in a will; D A citation to bring in grant A. CITATION TO ACCEPT OR REFUSE PROBATE Rule 61(43) states: where an executor fails to apply for the probate of a will, any person interested may cite the executor to accept or refuse probate of the will, or to show cause why administration should not be granted to the executor or to some other person having a prior right who is willing to accept the grant, but no citation shall issue until 14 days after the testator's death. This citation might well be used in a situation where the interested person is content as to the validity of the last will, but unhappy with the executor's delay in applying for probate and getting on with the administration of the estate. The rules do not define who might be a "person interested'. Generally speaking it will include anyone who has a claim against the assets of the deceased, either as a beneficiary or as a creditor, as well as under the Wills Variation Act, or under the Estate Administration Act. Rule 61(44) provides that this citation shall be in form 77, and an answer in form 78. An affidavit in support is not required. The purpose of this citation is to have the will in question admitted into probate, but in the name of the citator if the executor refuses to apply. The person cited (the citee) must then either: 1) apply for a grant of probate within 14 days of service of the citation on him or her; 2) file an answer in form 78 undertaking to apply for probate within 14 days from the date of the answer; or 3) file an answer showing cause why administration should not be granted to the person identified in the citation who intends to apply for it. Section 25 of the Estate Administration Act provides that where an executor named in the will is cited to take probate and does not appear to the citation, then the right of that person in respect of executorship ceases. The representation to and the administration of the testator's estate devolves, without formal renunciation, as if that person had not been appointed executor. If an unnamed executor cannot be found to be served with the citation, then the citator has two options namely: 1) apply for substitutional service of the citation; 2) apply under section 7 of the Estate Administration Act for the appointment of administrator with will annexed. Section 6(3) of the Estate Administration Act provides that where an executor named it will refuses to prove the will, then the administration to be granted by the court must be that of administration with the will annexed. B. CITATION TO PROPOUND AN ALLEGED WILL Rule 61 (45) states: (a) where there is or may be a document that may be alleged to be a will of the deceased person, a citation to propound the document as a will may be issued by any person interested. (b) the citation must (i) be in form 79, (ii) be supported by affidavit, and (iii) be directed to the executor and any other person named to the document. (c) An answer shall be in form 80 This citation is frequently used in situations where the interested person wishes to rely upon an earlier will, or alternatively, wishes to have the estate distributed in accordance with an intestacy. The alleged will referred to in the citation will generally be challenged as to its validity. The interested person can cite the executor and all persons named in the alleged last will to propound that will. If they fail to appear to the citation, then the last will will be ignored. The person cited has 14 days from service to answer to citation in accordance with form 80. Generally speaking the person cited must either state his or her intention to apply for probate or administration, or alternatively state grounds of objection to the citor applying for probate or administration. It is very dangerous for the person cited to not answer the citation, because if they do not do so, then the grant of administration claimed in the citation will be issued. The citation dispenses with the need to have the court pronounce against the validity of the testamentary paper in formal proceedings. Accordingly, a citation to accept probate as executor assumes the validity of the document in question. A citation to propound an alleged will on the other hand, assumes that the document in question may well be invalid. C. CITATION TO BRING IN A WILL Rule 61(46) states: (a) where a testamentary document may be in the possession or control of a person, a citation may be issued to the person calling on the person to deposit with the registrar any testamentary document in the person's possession or control, or to state under oath that no testamentary document is in the person's possession or control. (b) the citation shall be in Form 81 and shall be supported by affidavit. (c) where it is shown by affidavit, to the satisfaction of the registrar, that a person has knowledge of the Will or other document, or any assets relating to or belonging to an estate, the registrar may issue a subpoena in Form 82 for service on that person. This citation is typically used against the person who refuses to produce a Will or codicil. The citation compels the person to deposit the Will or codicil with the registrar. Once it has been deposited, the person who wants to apply for probate must then apply to the registry for release of the document. Section 113 of the Estate Administration Act also empowers the court to order production of the testamentary document. If it is not shown that any such writing is in the person's possession or control, and there are reasonable grounds for believing that the person has a knowledge of such writing, the court may direct the person to attend for the purpose of being examined in open court, in Chambers, before an examiner or on interrogatories respecting it. The person can be compelled to answer all lawful questions and to produce the writing, or failing same, may be found in contempt of court. There is case authority for the proposition that the citation to produce testamentary documents also requires the production of any duplicate copies including unexecuted copies. This allows for the admission into probate of on unexecuted copy in the event that the original is lost. Section 114 of the Estate Administration Act empowers the registrar of any court to issue a subpoena requiring a person to produce and bring into the registry, or other place the subpoena may direct, any Will or other document or assets relating or belonging to an estate that is shown to the in the possession or under the control of the person. This subpoena may be issued whether or not a proceeding is pending in the court. Any person whose served with such a subpoena must bring in the Will document or asset, or in default is in contempt of court. A plain reading of Section 114 would appear to give this section a very broad provision that might well require the production of related documents to the Will, such as memoranda of instructions from the deceased to the executor or trustee. The section is rather under utilized in the opinion of the writer so far as it relates to the power to compel the production of assets that relate to or belong to an estate, that are shown to be in the possession or under the control of another person. An order under current Section 113 was used in the case of Re Shepherd, (1891) P.323 by people who believe they were beneficiaries under a will, to require the person having possession of the Will to produce it for inspection. I again refer to the subpoena in Form 82 that the registrar may issue under rule 61(46)(c) that orders the person to attend to the registrar's office to be examined concerning the estate of the deceased, and to deliver to the registrar the assets and documents named in the subpoena. As a matter of practice, the subpoena is prepared by the lawyer, in conjunction with an affidavit, that must satisfy the registrar that the person does in fact have knowledge of the Will or other document or any assets relating to or belonging to an estate. This provision has been used to compel a witness to provide an affidavit as to due execution of a will in order to obtain probate in common form, where the witness has refused or neglected to provide an affidavit. Rule 61(7) states that where there is no attestation clause to Will or codicil, or in the attestation clause is insufficient, the registrar shall require an affidavit from at least one of the subscribing witnesses, if they or either of them are living, to prove that the requirements of the Wills act as to execution, were in fact complied with. 4. CITATION TO BRING IN GRANT Rule 62 deals with the administration of contentious estates. Rule 62 (5) states as follows: In an action for revocation of the grant of probate or administration, (a) if the action is commenced by a person to whom the grant was made, the person shall lodge the grant with the registrar within seven days after the issue of the writ, or (b) if the defendant to the action has the grant in his possession or under his control, the defendant shall lodge it with the registrar within seven days after the service of the writ upon him, and the person to whom the grant was issued shall not act under without leave of the registrar. Rule 62(6) states: Where a person fails to comply with subrule(5), the registrar may issue a citation in Form 85 calling on the person to bring the grant into the registrar's office, and a person against whom the citation is issued shall not take any step in the action without leave of the court until the person has complied with the citation. When the grant sought to be revoked is one of probate in common form the citation may be obtained by everyone whose rights are adversely affected by the Will that has been proved. In particular such action may be taken by the following: 1) any person entitled to share in the deceased estate on an intestacy or the representative of any such person. The fact that such person has acquiesced in the grantor has accepted a legacy under the Will does not debar him. 2) a beneficiary or his representative whose bequest has been omitted from the probate e.g. as contained in the codicil where only the Will has been proved. 3) the executors or beneficiaries named in any Will or codicil made by the deceased and the representatives of such person; but the executor of the Will that has been proved cannot, as such, institute revocation proceedings When what is desired is the revocation of a grant of administration made on intestacy, a citation may be obtained either by anyone claiming an interest under an alleged Will of the deceased, or an interest in the estate. The purpose of this paper has been to examine the power of caveats and citations as useful tools in probate practice. In my experience, it is absolutely necessary to seriously consider filing a caveat in the probate registry when the Will or the estate may be challenged by your client. The filing of a caveat is a simple, inexpensive, and immediate remedy that will bring all probate matters to a grinding halt, and allow you the luxury of sufficient time to undertake a thorough and proper investigation of the matter at hand. Similarly, it is my experience that citations, together with the
parallel provisions of the Estate Administration Act, are seriously
under utilized by estate practitioners. Litigants in estate matters
are often extremely uncooperative and secretive. The use of the
appropriate citation can often bring a satisfactory result in a
short period of time, by reason of the threat of contempt of court
proceedings, or alternatively, in effect, a "default judgment"
if the citation is ignored.
|
Website
by Apogee Public Relations
and SPECTRAMEDIA