Trevor Todd and Jackson Todd have over sixty years combined experience in estate litigation including issues such as beneficiaries not receiving notice of an application for a grant of probate or administration.
Gill v Gill 2025 BCCA 86 is an appeal from the chambers judge’s decision to revoke a grant of probate on the basis that notice was not received by a recipient entitled to notice.
The Appeal was dismissed. The chambers judge stated and applied the correct legal test, determining that the deemed delivery presumption was rebutted, that one of the intended recipients had not received notice of the grant application, and in reaching this conclusion, found that the appellant had not shown he made reasonable efforts to effect notice.
In her assessment of the evidence, the chambers judge found the intended recipient presented evidence of specific facts and circumstances that established, on a balance of probabilities, that he had not received notice. There was ample evidence to support this finding.
THE LAW
Section 121 of WESA requires an applicant for a grant of probate to give notice:
121 (1) An applicant for a grant of probate or administration must give notice of the proposed application to the persons referred to in the Supreme Court Civil Rules.
…The parties agree that the respondents were all persons entitled to notice under s. 121 of WESA and R. 25-2.
[13] Rule 25-2(5) sets out when and how delivery of notice must be completed:
When delivery occurs under this rule
(5) Delivery of a document under this rule occurs as follows:
(a) if the document is sent for delivery to a person by ordinary mail to the person’s mailing address, the document is deemed to be delivered on the date it is mailed;
…Section 29 of the Interpretation Act, R.S.B.C. 1996, c. 238, defines the terms “deliver” and “mail” as follows:
29 In an enactment:
…“deliver”, with reference to a notice or other document, includes mail to or leave with a person, or deposit in a person’s mailbox or receptacle at the person’s residence or place of business;
…“mail” refers to the deposit of the matter to which the context applies in the Canada Post Office at any place in Canada, postage prepaid, for transmission by post, and includes deliver;
The chambers judge moved to the legal framework governing her resolution of the notice dispute. She set out s. 121 of WESA and R. 25-2. Though decided under the Estate Administration Act, R.S.B.C. 1996, c. 122 (which was repealed and replaced by WESA in 2014), the chambers judge relied on this Court’s decision in Desbiens v. Smith, 2010 BCCA 394 and cited extensively from it. Following her review of Desbiens, the chambers judge found that notice under the Estate Administration Act was to be functional, citing Desbiens, where Justice Groberman stated: “The notice requirement in s. 112 [of the EAA] is a functional one – it is not a meaningless pro forma exercise. It is designed to ensure that the persons listed receive notice of probate”: at para. 28.
Relying on Desbiens, the chambers judge found that the respondents were entitled to notice under s. 121 of WESA and R. 25-2. She stated that the notice requirement under s. 121 of WESA and R. 25-2 went beyond the functional notice requirement set out in Desbiens. The chambers judge commented on the information contained in the Notice and stated that it was intended to provide the recipient an opportunity to assess their legal position in response to the application for a grant of probate. To support this proposition, the chambers judge highlighted that the notice form mandated under R. 25-2 includes provisions that specifically alert the recipient to the existence of their right to oppose under R. 25-10(1) and their potential entitlement to claim against the estate under WESA: at para. 107. As such, the notice requirement in these circumstances serves as an increased function (at para. 107).
