Trevor Todd and Jackson Todd have practiced estate litigation for over sixty years, including the filing and removal of Notices of Dispute.
Pursuant to Rules 25-10(10) and 25-10(11), the test to remove a Notice of Dispute is whether the filing of the notice is in the best interests of the estate: Richardson Estate (Re), 2014 BCSC 2162 at paras. 54, 58.
Rule 25 – Application to remove notice of dispute
(10)A person who is interested in an estate in relation to which a notice of dispute has been filed, including, without limitation, an applicant for an estate grant or for the resealing of a foreign grant, may apply on notice to the disputant for an order removing the notice of dispute.
Grounds on which notice of dispute may be removed
(11)On an application under subrule (10), the court may, by order in Form P31, remove a notice of dispute if the court determines that the filing is not in the best interests of the estate.
When notice of dispute ceases to be in effect
(12) A notice of dispute in relation to an estate ceases to be in effect as follows:
(a)subject to paragraph (b), on the date that is one year after the date on which the notice of dispute was filed;
(b)if the notice of dispute has been renewed under subrule (6), at the end of the renewal period;
(c)if the notice of dispute is withdrawn by the disputant under subrule (9);
(d)if the will in relation to which the notice of dispute relates is proved in solemn form;
(e)if the court orders, under subrule (11) or otherwise, that the notice of dispute is removed.
In Stoker v Young 2024 BCSC 637 the objection to the ground raised by the Notice of Dispute pertained directly to the will’s validity and the validity of the estate grant which is sought. In the circumstances, it was necessary for the will to be proven in solemn form.
In Martyniuk Estate, 2016 BCSC 2024, the court held that it was not appropriate to deal with an application to cancel a notice of dispute where more issues were at play than the administration of the estate, and in that case a summary trial was directed on the issue of spousal status.
Further, in the case of Schell Estate (Re), 2019 BCSC 2168, the court held that where there are allegations of lack of testamentary capacity or allegations of undue influence, proof in solemn form is required.
