WESA #33 – It Starts Tomorrow – The Transition Rules

RULE 25-16—TRANSITION

Rules 61 and 62 which had been around for at least three decades are now repealed and replaced with Rule 25-16

The Transitional Provisions, Repeals and Consequential and Related Provisions are set out in Sections 185-190 of WESA

Definition

(1) In this rule, “former rule** means

(a) Rule 61 or Rule 62 of the Rules of Court, B.C. Reg. 221 /90, that was repealed on the coming into force of the Supreme Court Civil Rules, B.C. Reg. 168/2009, or
(b) Rule 21 -4 or Rule 21 -5 that was repealed on the coming into force of this rule.
Application for grant or resealing under former rule

(2) If, before the coming into force of this rule, an application was brought under a former rule for a grant of probate or administration, ancillary grant of probate or administration or resealing of a foreign grant,

(a) the application is deemed to be an application for an estate grant or a resealing, as the case may be, under this Part,
(b) if that application met all of the notice, delivery and service requirements of the former rule, it is deemed to meet all of the notice, delivery and service requirements of this Part, and
(c) the court or the registrar may issue an estate grant or reseal a foreign grant, as the case may be, in response to the application if that estate grant could have been issued, or that foreign grant could have been resealed, under the former rule.

Caveat filed under former rule

(3) If a caveat filed under a former rule in relation to an estate is in effect on the coming into force of this rule, the caveat

(a) is deemed to be a notice of dispute filed under this Part, and
(b) expires
(i) when it is withdrawn,
(ii) if it is not withdrawn but has been renewed by order of the court, when the
renewal period ceases, or (iii) if it is not withdrawn and has not been renewed by order of the court, on the date that is 6 months after the date on which it was filed.

Citation to accept or refuse probate served under former rule

(4) If a citation to accept or refuse probate or to propound an alleged will was served under a
former rule, the citation is deemed to be a citation under Rule 25-11, and, for that purpose, the citation is deemed to have been served on the coming into force of this rule.

(5) A probate action brought under a former rule, or a petition proceeding brought under a former
rule for proof of a will in solemn form, that was ongoing when this rule came into effect is deemed to
continue as a proceeding under this Part and, for that purpose, all steps that could have been taken in theprobate action or petition proceeding under the former rule, including, without limitation, steps in respect of pleadings, examinations for discovery, discovery of documents and the trial of any or all issues, may be taken in the proceeding under this Part subject to any contrary directions under subrule (6).

Court may decide

(6) The court may give directions if there is any dispute in relation to the procedure to be appliedto, or followed in, a proceeding referred to in this Part

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 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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