Master Young ,described the registry procedure for probate grants. The initial vetting of probate applications goes to senior registry staff to ensure that all the formalities are completed. The master has to review all probate applications before the Deputy District Registrar signs the grant.
There were no concerns about the process raised by the registry. As most counsel know, when an application is bounced, a checklist is attached that indicates as how the application was deficient and counsel are encouraged when the application is re-submitted to include the checklist so that it goes back to the appropriate person who is familiar with the file.
If counsel have an application that is time sensitive in nature they are invited to indicate this in the Requisition or in a cover letter. State why it is urgent and it will be delivered directly to the Registrar for approval.
Further, if something in the application is odd, difficult, or questionable, include the details in a cover letter and possibly a supplemental affidavit to avoid having it returns by registry staff.
Passing of Executor’s Accounts
The formal passing of estate accounts is fairly rare as most are consented to.
The Rules of Court provide that the application for passing of accounts is by Rule 21-5(70)-(72) and in Form 106.
If you intend to give Notice of your application to pass accounts then follow Rule 8-1. An Application without Notice can be made under Rule 8-4 in which case the interested parties would receive notice after the order to refer the matter to a registrar is obtained.
If a beneficiary is requesting the passing of accounts they may do so by filing a Petition pursuant to Rule 16.
In some circumstances the personal representative may wish to formally pass accounts in situations where the accounts are not opposed by any party. This can be done by Notice of Applications using the Rule 8 procedure. The standard form 106 account will be filed but in the
event that you will be requesting higher than average executor or legal fees this affidavit should contain further information to satisfy the master that the higher fees are justified. This additional affidavit material can be included in the form 106 or in a separate affidavit. Even if everyone consents, the master will want evidence to justify the higher fee.
Applications for a Formal Passing of Accounts before the Registrar
When the accounts are opposed, a registrars hearing will be required.
The first step it to obtain an order from the master setting the matter down for a registrar’s and setting out the terms of the reference to the registrar. This application in master’s chambers can be made without notice because the interested parties will be notified of the registrar’s hearing. The method of service of the interested parties may be a term that you ask the master to set.
You should decide whether to ask the master to order that the registrar has authority to certify her findings or not. If the findings are certified by the registrar at the time the report is filed, then the findings become a court order and do not require a third court appearance to certify the findings. This power to certify does save the estate some time and money but as was pointed out by one attendant at the meeting it does limit the interested parties’ opportunities to challenge the registrar’s findings. Essentially, you will be removing one level of appeal. On reflection, the master would likely be willing to grant the power to certify if all interested parties had notice of that first stage application but may be less likely to do so if the first order is applied for without notice.
In situations where accounts are not consented to but you are unable to ascertain what the issues are, you are encouraged to set down a pre-hearing conference first.
You may request leave to leave to attend a prehearing conference by phone. This request will ordinarily be approved. However, if the other party is self represented it may be advisable to appear in person so you have an opportunity to talk to the person prior to attending the prehearing conference. It is the master’s observation that in-person conferences are always more effective than telephone conferences, but of course, they are more time consuming and expensive for the parties.
At the prehearing conference, the Registrar will determine the length of time required for the hearing. If it is more than a half-day, a pre-conference is mandatory. She may make the following orders or directions:
o An order for production of documents in advance of the hearing date. The registrar will generally wish to see the legal account as well as the executors accounts in cases where the executors remuneration is being challenged or is in the higher end of the range;
o Ascertain what witnesses will be called and ensure adequate time is reserved for the hearing.
o Confirm if evidence is by affidavit (Form 106) or viva voce; generally counsel will want to have the personal representative take the stand and give some evidence in chief even if affidavits are filed.
The Standard Hearing Procedure
Give your opening statement to focus the registrar’s attention on what the issues are, who the witnesses are and etc. You may ask to have witnesses excluded from the courtroom during testimony of earlier witnesses
There is no requirement for filing a Chambers Record because registrars hearing do not fall under Rule 8 but if you will be referring to a number of documents then a document binder is highly
recommended. You are also encouraged to bring an entire exhibit book for the witness who is in the witness stand, so that the court is not passing their book back and forth.
To prepare your personal representative in files where you know from the start that matters will be opposed, advise your personal representative to keep a journal log and write all their estate activities in it. Caution them that the journal may have to be disclosed to the other parties so it should not contain anything that they do not wish to be read out in court..
Be prepared to make your argument for costs at the end of the hearing. If the estate was put to unnecessary or unreasonable expense you may submit that the beneficiary causing the expense and not the estate should bear some of the costs.
• In a simple matter you may wish to bring a draft report.
• If there is no Order for certification then your next step is to make a chambers application before a
judge to certify or vary the registrars report and recommendations and to discharge the personal
representative. A notice of application must be filed and served again using Rule 8 procedure and
a Chambers Record. The report of the registrar should be attached to the notice of application
which will be served on all interested parties. If you seek to vary the recommendations then the
terms you wish to vary and the order you seek should be clearly set out in the Notice of
Application. An affidavit supporting the application is required. You are directed to the CLE manual
“Practice before the Registrar” which sets out the procedure and precedents.