Revoking a Grant of Probate

Revoking a Grant of Probate

Debsbiens v Smith Estate 2010 BCCA 392 discusses the concept of revoking a grant of probate, which typically involves one of two attacks, namely finding a defect in the process leading up to the grant of probate, such as failure to serve a beneficiary with notice, or submitting false, or fraudulent information to the court in support of the application.

One problem that can be encountered in such an application is that if the client cooperated with the initial application, they may be estopped from trying to attack the grant. – Hayes v Montreal Trust Company 1977 BCJ 1317.

A typical case where a grant of probate has been set aside for failure to provide notice to potential beneficiary was noted in Shaw v. Reinhart 2004 BCSC 588 were a plaintiff in a wills variation action alleged that she had been the deceased’s common-law spouse of the date of his death. The action was brought some 10 months after the grant of probate that was issued to the deceased sons. They had not provided the plaintiff was notice under the Estate Administration Act, as they took the position that the plaintiff was not the deceased common-law spouse of the date of death. The executors brought an application to strike the claim as having been brought outside the limitation. However, this application was rejected and the court instead granted the plaintiff leave to move to have the grant of probate revoked.

Similarly, in Somodi v Szabados 2007 BCSC 857 the plaintiff was found to be a common-law spouse of the deceased, but the executor and sole beneficiary under the will was the deceased son and did not acknowledge the plaintiff as the deceased common-law spouse, instead contending that the relationship was simply one of landlord and tenant. He did not provide the plaintiff was notice of his application for probate. The plaintiff commenced an action under the wills variation act more than two years after the grant of probate. The court held in favor of the plaintiff stating that it is the plaintiff’s position that where the status of a common-law spouse is at issue, notice under section 112 of the Estate Administration act must be given, and where it is not, the defendant is estopped from relying on the limitation defence.

As in the Shaw decision, the court concluded that where the status of a common-law spouse is at issue, notice under the estate administration act must be given and failure to do so, precludes reliance on the limitation period.

Grounds for revoking probate:

Courts have jurisdiction to revoke grants of probate where evidence discloses that the grant ought not to have been issued. There are numerous grounds which probate can be revoked such as:

  • where subsequent wills of been discovered;
  • it is been found that the will is otherwise invalid;
  • where it has been determined that the testator was not in fact dead;
  • where the executor was under a legal disability, such as being a minor or mentally infirmed,
  • 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.

Ravenscroft v Ravenscroft 1670 1 Lev. 305, stated that the jurisdiction of the probate court to revote a grant of probate is quite broad, though it is be exercised sparingly. The court possesses and when it becomes necessary exercises the power of revoking or annulling for a just cause any grant which it has made, and in doing so, it only resumes into its own hands the powers which it parted with on false or inaccurate suggestions.

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 45 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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