The leading decision in British Columbia on the jurisdiction of a court to revoke a grant of administration or probate is Desbiens v Smith 2010 BCCA 394, which was referred to in Sung estate 2019 BCSC 1202.
In Desbiens the court set aside the grant of probate on the basis that the executor failed to comply with providing statutory notice to a person who had the right to bring a wills variation action.
The jurisdiction of the court to revoke a grant is quite broad, though is to be exercised sparingly and with restraint. Any failure on the part of an executor executrix to comply with statutory notice requirements merely opens the door to an application for revocation.
One of the questions that must be considered is whether the applicant’s claim has sufficient merit to warrant revocation of the grant.
Section 121 of WESA provides that an applicant for a grant of probate or administration must give notice of the proposed application to the persons referred to in the rules. Rule 25 –2(2) is the applicable rule.
The law and practice as to Probate, Administration and Guardianship 1880 by Alfred Howell sstates , at page 300 :
“A Surrogate court possesses, and when it becomes necessary, exercises the power of revoking or annulling for a just cause any grants which it is made; and in doing so, it only resumes into its own hands the powers which it parted with on false or inaccurate suggestions.”
Desbiens adopted the reasoning in Hanson v Rebagliati 1993 BCJ 78 which stated that whether revocation should be granted involves several questions that must be considered:
1. Are the plaintiffs correct in asserting that revocation would affect the limitation period for the bringing of the action under the wills variation act?
2. If so, with the result treat the plaintiffs unduly favourably?;
3. Is the plaintiff’s claim of sufficient merit to justify revocation of the grant?;
4. What would be the effect of revocation on transactions that have already taken place?;
5. Would third parties be prejudiced ?;
6. Would either of the parties suffer and equitable treatment if probate was revoked?.