Power of Citations Expanded Under WESA
New Probate Rule 25-11 greatly expands the power and effect of issuing a Citation.
The form prescribed in P32 is much more detailed in the information required.
The person cited with the Citation has 14 days of personal service to respond and deliver to the citing party:
1) a copy of the grant;
2) a copy of the filed submission for the grant;
3) if not yet i8ssued, a copy of the materials filed in support of the grant,
4) if no steps have ben taken towards obtaining probate, the disputant must file an Answer under Form P33
Under 25-11(2) the citation must also be personally served on each alternate executor in the event that the first executor fails to comply with the 14 day rule, or file an Answer.
Under Section 25-11 (5) , a person cited is deemed to have renounced executorship if:
a) the person cited refuses to comply with providing the information or filing an Answer under 25-11 (4), is deemed to have renounced executorship.
2) or obtain a grant of probate within 6 months of the date the citation was served
5-11 (6) deals with the effect of failing to answer a Citation or refusing probate:
1) if the person fails to apply for probate , provide an Answer or fails to provide the information, he or she is deemed to have renounced the executorship.
In that event, the citor or another person interested in the estate may apply for:
1) a grant of probate or administration with will annexed;
2) an order under S 58 curing deficiencies in the testamentary document;
3) that the testamentary document be proved in solemn form;
4) if the testamentary document is in the possession of a third party, the issuance of a subpoena under Rule 25-12 to require the cited person to file the testamentary document
RULE 25-11—CITATIONS
Citation to apply for probate
(1) If a testamentary document is or may be in existence, a person interested in the estate may
serve by personal service on each person named as an executor in the testamentary document a citation
in Form P31 fed. note: Form P32] in respect of the testamentary document to require the served person
to apply for a grant of probate in relation to that testamentary document
Alternate executors
(2) A citation under subrule (I) in relation to a grant of probate
(a) must be served by personal service on each alternate executor if an event, including, without limitation, an event referred to in subrule (5), occurs that entitles the alternate executor to assume the office of executor, and
(b) must not be served on an alternate executor until an event referred to in
paragraph (a) occurs that entitles that alternate executor to assume the office of executor.
Citation to be supported
(3) A citation under subrule (I) in relation to a testamentary document must include
(a) an address for service of the citor, which address for service must be an accessible address that complies with Rule 4-1(1), and
(b) a statement of the citor providing ,
(i) the grounds for the citor’s knowledge of or belief as to the existence of the
testamentary document, and (ii) information available to the citor that will allow the testamentary document
to be identified.
Answer to citation
(4) A person who is cited by being served with a citation under subrule (I) must, within 14 days
after being served with the citation,
(a) if the cited person has been issued a grant of probate in respect of the testamentary document in relation to which the citation was issued, serve on the citor, by ordinary service, a copy of the estate grant, or
(b) if the cited person has not yet been issued a grant of probate in respect of the testamentary document in relation to which the citation was issued, serve the citor as follows:
(i) if the cited person has filed a submission for estate grant under Rule 25-3(2) in respect of the testamentary document, serve on the citor, by ordinary service, a copy of the filed submission for estate grant along with copies of the other documents filed under Rule 25-3(2);
(ii) if subparagraph (i) does not apply but the cited person has delivered
documents under Rule 25-2( I) in relation to an application for a grant of probate that the cited person intends to pursue in respect of the testamentary document, serve on the citor, by ordinary service, a copy of those documents;
(iii) if the cited person has not taken any step under this Part in relation to the estate, serve on the citor, by ordinary service, an answer in Form P33 providing an address for service that is an accessible address that complies with Rule 4-1 (I) and stating that the cited person
(A) will apply for a grant of probate in respect of the testamentary document, or
(B) refuses to apply for a grant of probate in respect of the testamentary document
Deemed renunciation of executorship
(5) A person who is cited under subrule (I) to apply for a grant of probate in relation to a
testamentary document is deemed to have renounced executorship in relation to that testamentary
document if
(a) he or she is a person referred to in subrule (4)(b)(i), (ii) or (iii)(A) and does not (i) serve on the citor the document that, under that provision, he or she is required to serve, or
(ii) obtain a grant of probate within 6 months after the date on which the citation was served or within any longer period that the court on the application of the cited person may allow, or (b) he or she is a person who serves on the citor an answer referred to in
subrule (4)(b)(iii)(B).
Effect of failure to answer citation or give reason for refusing probate
(6) If each person who is cited under subrule (I) to apply for a grant of probate in relation to a
testamentary document is deemed under subrule (5) to have renounced executorship in relation to the
testamentary document, the citor or another person interested in the estate may, without limiting any
other right the citor or other person may have, apply for one or more of the following:
(a) a grant of probate or a grant of administration with will annexed in relation to the testamentary document or another testamentary document;
(b) an order under section 58 of the Wills, Estates and Succession Act curing any deficiencies in the testamentary document;
(c) an order that the testamentary document is a will proved in solemn form;
(d) if the testamentary document is in the possession of a cited person, the issuance of a subpoena under Rule 25-12 to require the cited person to file the testamentary document
Affidavit of deemed renunciation for grant of probate
(7) The citor may swear an affidavit of deemed renunciation in Form P34 if the person who has been
served with a citation in respect of a testamentary document is deemed under subrule (5) to have
renounced executorship in relation to the testamentary document.
