Trevor Todd and Jackson Todd have in excess of sixty years combines experience in handling contested estate matters including dealing with Noticees of Dispute.
Notices of Dispute
Notices of dispute were formerly known as caveats and are used to prevent the issuance of an estate grant or authorization or resealing if there are concerns over the validity of the testamentary document or with the suitability of a particular personal representative.
It must be stressed that the purpose of filing a notice of dispute is when the validity of the document or the suitability of the personal representative is in issue, and for no other purpose. If the notice of dispute serves no other purpose but to stand in the way of the administration of the estate, or if it is filed for an improper purpose, the dispute may be liable for costs. Chang v Chang Estate 2010 BCCA 111.
For example in a wills variation proceeding it is improper to file a Notice of Dispute if there is no concern re the validity of the will or choice of executor.
Rule 25 – 10 governs notices of dispute and the procedures for opposing the issuance of a representation grant. The proper form of the notice of dispute is founded form P 29 ( Rule 25 – 10(3)), and must include contact details in the grounds on which the notice of dispute is filed.
A person may file only one notice of dispute concerning any one estate, but that notice of dispute may be found in any court registry in British Columbia. There is no requirement that the disputant serve a copy of the notice of dispute on the proposed applicant, although professional courtesy should provide that it be done.
To have standing to file a notice of dispute, the disputant must have received notice pursuant to rule 25 -2(2)) or claim an interest under a prior or subsequent will ( Rule 25 – 10(1)).
The notice of dispute must be filed before the earlier of the issuance of an authorization to obtain estate information or an authorization to obtain receiving information and the issuance of an estate grant, or the resealing of a foreign grant. If the disputant received notice under 25 –2(2)) . This should ensure that they felt before the 21 day period for filing an application expires.
A notice of dispute is in effect for one year and can be amended once without leave of the court-Rule25-10(5)). It is also renewable upon application for any reason the court considers appropriate before it ceases to be in effect, if the court thinks is appropriate or after it ceases to be in effect based on a three-part test.
The three-part test is found that rule 25-10B) and includes:
-If there were good reasons that the application for renewal could not be brought before a notice of dispute ceases to be in effect
-substantial prejudice would be suffered by the person seeking treatment.
-The renewal of the notice of dispute if the order for renewal is not made, and-
no other person interested in the estate would suffer substantial prejudice if the order for renewal is mad
Removal or Withdrawl of a Notice to Dispute
A person who is interested in an estate in relation to a notice of dispute has been filed, has standing to bring an application to remove the notice of dispute( Rule 25-10(10) . Effect of a successful application is that the notice of dispute ceases to have effect
The test for removing a notice of dispute is found in rule 25-10(11) , which provides that the court may remove the notice of dispute if it determines that the filing is not in the best interests of the estate. Form 31 of the rules provides a form of order for the removal of a notice of dispute
In re Richardson estate 2014 BCSC 2162, the court held that the language of Rule 25-10(11) is broad and that the best interests of the estate can be an economic issue, one requiring the weighing of the value of the decision or issue in dispute with the overall value of this state. The court also added that noneconomic factors can be important to the best interests of the estate.
If the court does remove the notice of dispute, it may impose conditions of other matters are outstanding. For example, in Ray Haynes estate, 2021 BCSC 669 the court held it was in the best interest of the estates to remove the notice of dispute and impose various conditions to ensure that this second not distribute distribute any of the estates property in dispute until the substantial legal issues were resolved.
Even where a notice of dispute is withdrawn or expires, if it is challenged the validity of the will, proof in solemn form may be required.
If multiple issues are raised during an application to remove the notice of dispute, the court may direct further proceedings before removing the notice. Re Martyniuk Estate 2016 2024 where social’s status was also in dispute
