Executor Court Actions Before Probate

Court ActionsExecutor Court Actions Before Probate

The law seems to be clear that an executor can bring an action in his or her capacity as executor before probate is granted but cannot obtain judgment in the action without probate having been granted:  see Chetdy v. Chetdy, [1916] 1 A.C. 603 (P.C.), cited by Allen J. in Harshenin v. Bayoff, [1991] B.C.J. No. 3161 (S.C.).


Romans Estate v Tassone 2009 BCCA 421 discussed how an executor may have to commence court action to prove a will is valid band before a grant of probate can be obtained, and the duty of the court to ensure that the validity of the will is proven firstly.

The chambers judge referred to Trites v. Johnson, [1945] B.C.J. No. 76, [1945] 3 W.W.R. 100 (B.C.S.C.). In that case, the will had been proven in common form and the plaintiffs sued for revocation of the grant of probate on the basis that there had been undue influence and lack of testamentary capacity. In a counterclaim, the executors sought proof of the will in solemn form. The plaintiffs withdrew their action but the trial judge, Macfarlane J., determined that he should proceed with the counterclaim for proof of the will in solemn form. He said this:

[4]        In a case of this kind where the validity of a will has once been called in question I think it is the duty of the executors to prove the will in solemn form of law, and the practice is that they ask for this in the action by way of counterclaim. I think therefore that even though the plaintiff in the action at the trial wishes to withdraw, the executors should be allowed to proceed to establish the validity of the will notwithstanding the application to withdraw.

[21]         Although this case is not directly on point on the facts, I take this general observation by Macfarlane J. to have application. In my opinion, the validity of the will here having been properly called into question, the court cannot let the matter pass without requiring the executor to prove the will in solemn form before proceeding with the action. In some cases, of course, an executor might seek to prove the will in solemn form on the basis of a concern raised by the executor and not by another party.

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