(1) This Regulation may be cited as the Probate Rules.
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1.02Interpretation |
(1) In these rules
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“Act” means the Probate Court Act.
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RULE 2 |
NON-CONTENTIOUS BUSINESS |
2.01General |
(1) Subject to paragraph (2) and Rule 4.03(1), an application for letters probate of a will or letters of administration shall be in the form prescribed by these rules.
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(2) Where a prescribed form is not appropriate for an application for specific letters probate of a will or letters of administration, the applicant may file an application in a form acceptable to the Court.
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(3) An application for letters probate of a will shall be in Form 2A or 2B.
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(4) An application for letters of administration with the will annexed shall be in Form 2C or 2D.
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(5) An application for letters of administration without will annexed shall be in Form 2E or 2F.
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(6) Where there is more than one applicant, joint or separate forms of affidavit may be used.
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(7) The order of the Court to grant letters probate of a will or letters of administration shall be in Form 2G.
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(8) Letters probate of a will or letters of administration to be granted by the Court shall be in Form 2H.
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2.02Letters Probate of a Will or Letters of Administration with the Will Annexed |
(1) Unless the Court otherwise directs,
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(a) no letters probate of a will or letters of administration with the will annexed shall be granted until after the lapse of seven days from the death of the testator, and |
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(b) no letters of administration shall be granted until after the lapse of fourteen days from the death of the intestate. |
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(2) Where two or more competing applications for letters are made, the Court shall determine upon a summary application which prevails.
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(3) Subject to paragraphs (6), (7), (7.2) and (8), where there is an application for letters probate of a will or letters of administration with the will annexed, the due execution of the will and of every codicil thereto shall be proved by an affidavit of one of the subscribing witnesses in Form 2I or 2J.
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(4) Where the affidavit of execution referred to in paragraph (3) cannot be obtained from either subscribing witness, the due execution of the will may be proved by other evidence.
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(5) An affidavit of execution referred to in paragraph (3) may be made either before or after the death of the testator.
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(6) Where a holograph will is presented for probate or with an application for administration with the will annexed, the due execution of the will shall be proved
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(a) by an affidavit of execution in Form 2K, or |
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(b) in such other form as the Court may direct |
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stating that the will, including the signature thereto, is wholly in the handwriting of the testator. |
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(7) Where the will of a person who at the time of the execution of the will was a member of the forces, or was a mariner or a seaman at sea or in the course of a voyage, is presented for probate or with an application for administration with will annexed, the Court may accept such evidence as the Court considers satisfactory as to the validity and due execution of such will.
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(7.1) Subject to paragraph (7.2), a document or writing referred to in section 35.1 of the Wills Act shall be dealt with under these rules as if the document or writing were a will.
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(7.2) Where a document or writing referred to in section 35.1 of the Wills Act is presented for probate or with an application referred to in paragraph 2.01(4), the Court may accept such evidence as it considers satisfactory to determine whether the document or writing meets the requirements of section 35.1.
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(8) An affidavit of execution referred to in paragraph (6) may be made either before or after the death of the testator.
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(9) No affidavit of execution referred to in paragraph (3) or (6) and no affidavit of condition in Form 2L shall be sworn or affirmed by a witness to the will or codicil before another witness to the will or codicil.
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(10) The will and every codicil submitted by an applicant shall be identified by the signature of the applicant thereon.
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(11) Where
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(a) words in a will that may be of importance have been erased or obliterated, |
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(b) the appearance of the will is such as to indicate an attempted revocation by burning, tearing or otherwise destroying it, or |
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(c) any suspicious circumstances exist, |
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the Court shall not grant letters probate of the will until all such matters have been explained to the satisfaction of the Court. |
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(12) If a will is not dated or is dated imperfectly, one of the attesting witnesses shall furnish evidence of the date of execution, or where such evidence cannot be obtained, evidence shall be furnished
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(a) that the execution took place between two definite dates, or |
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(b) that a search has been made and that no will of a presumably later date has been found. |
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(13) Where it appears to the Court that a beneficiary or the spouse of a beneficiary witnessed a will and the provisions made therein for such beneficiary are void by reason of section 12 of the Wills Act, the Court shall endorse on the will the fact that the provisions are void.
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(14) Where an endorsement has been made under paragraph (13), the endorsement shall appear on the copy of the will attached to the letters probate of the will or letters of administration delivered to the applicant.
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(15) Where
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(a) all of the executors named in a will have not made application for letters probate of the will and the right has been reserved to one or more of them to make application for letters probate of the will at some future time, or |
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(b) letters probate of a will have been granted to an executor and an alternative executor has been called upon to continue the administration of the estate, |
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and it is desired that the appointment of the executor referred to in clause (a) or (b) be confirmed by the Court, an application for double probate may be made to the Court. |
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(16) An application to be presented by an applicant for a double probate shall be in Form 2M or 2N.
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(17) The original letters probate of a will shall be surrendered with the application for double probate or if the original letters have been lost, a certified copy of the letters shall be filed.
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90-44; 2001-8 |
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2.03Solemn Form |
(1) Where letters probate of a will or letters of administration with the will annexed are sought of a will that is lost or destroyed, proof shall be made in solemn form.
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(2) Where the Court is of the opinion that circumstances, other than those referred to in paragraph (1), appear to justify the requirement, the Court may require that proof of a will be made in solemn form.
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2.04Administration |
(1) An application for letters of administration without will annexed shall include the names of those persons entitled to share on the intestacy and shall show whether every person having a prior or equal right to a grant of letters has consented or renounced. |
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(2) The Court may direct that notice be given to every person having a prior or equal right to a grant who has not consented or renounced. |
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(3) Where there are no known next-of-kin or where the only next-of-kin are minors, the Court may order a notice to be given in such manner as the Court directs. |
90-44 |
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2.05Administration De Bonis Non Administratis |
(1) Upon the death of the administrator of an estate leaving part of the estate unadministered, a person interested in the estate may apply for letters of administration de bonis non administratis to complete the administration of the estate.
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(2) An application to be presented for letters of administration de bonis non administratis shall be in Form 2O or 2P and shall, if required, be accompanied by a bond referred to in Rule 2.09.
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(3) The original letters of administration shall be surrendered with the application referred to in paragraph (1) or, if the original letters have been lost, a certified copy of the letters shall be filed with the Court.
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2001-8 |
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2.06Administration De Bonis Non Administratis with the Will Annexed |
(1) Where the executor of an estate has died intestate and there are no other executors to carry on the administration of the estate, or where the administrator of an estate who has been granted letters of administration with the will annexed has died leaving part of the estate unadministered, the beneficiaries under the will may nominate a person to make application for letters of administration de bonis non administratis with the will annexed to complete the administration of the estate.
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(2) An application to be presented for letters of administration de bonis non administratis with the will annexed shall be in Form 2Q or 2R and shall, if required, be accompanied by a bond referred to in Rule 2.09.
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(3) The original letters shall be surrendered with the application referred to in paragraph (1) or, if the original letters have been lost, a certified copy of the letters shall be filed with the Court.
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2001-8 |
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2.07Ancillary Letters |
(1) Subject to paragraph (3), an executor or administrator of an estate, who has been granted by a foreign court letters probate of a will or letters of administration of an estate that includes property in the Province may apply for ancillary letters probate of a will or letters of administration and such application shall be in Form 2S, 2T, 2U or 2V.
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(2) Where it is shown that the executor or administrator is by the law of the domicile of the deceased entitled to receive the property, ancillary letters probate of a will or letters of administration may be granted.
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(3) Where an application for ancillary letters probate of a will or letters of administration is presented, the applicant shall file either the original letters, a certified copy of the foreign letters or, in the case of the Province of Quebec, letters of verification, which shall be identified by his signature.
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2.08Resealing |
(1) Subject to paragraph (3), in an application for the resealing of letters probate of a will, letters of administration or other legal documents purporting to be of the same nature, all material facts shall be verified by affidavit except that the letters or legal documents sought to be resealed may be accepted as proof of death and,
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(a) in the case of testacy, that the will has been executed and that it is the last will of the deceased and, |
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(b) in case of intestacy, that the deceased left no will. |
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(2) An application for the resealing of letters probate of a will, of letters of administration or other legal documents purporting to be of the same nature shall be in Form 2S, 2T, 2U or 2V.
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(3) A certified copy of the letters or other legal documents sought to be resealed shall be filed.
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2.09Security to be Given |
(1) For the purposes of section 57 of the Act, a bond given to the Court shall be
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(a) a bond of a guarantee company, or |
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(b) a personal bond in form 2W or 2X, accompanied by an affidavit of execution in Form 2Y and an affidavit of justification in Form 2Z. |
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(2) The Court may require the personal attendance of the sureties before the Court for examination.
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(3) A surety who is a natural person shall be of the age of majority.
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(4) A surety in administration bonds shall justify to an amount or amounts which shall equal the amount of the bond.
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(5) Where the value of the property of an estate is five thousand dollars or less, there shall be one surety and where the value of the property is greater than five thousand dollars, there shall be at least two sureties unless the Court otherwise directs.
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(6) A person interested in an estate for which a bond is required to be given may file a memorandum with the Court requesting that notice be given to him of the terms of any bond given respecting the estate.
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(7) A person referred to in paragraph (6) may apply to the Court to show that the terms of any bond given respecting the estate are insufficient.
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(8) The Court may, after considering an application made in accordance with paragraph (7), disallow the bond and direct a new bond to be given, but the Court shall not grant letters until the Court is satisfied that the bond given is sufficient.
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(9) Where the Court has reason to believe that the value of the property of the deceased exceeds the sum stated by the applicant, the Court may inquire into the matter in a summary way and determine the amount of security to be given.
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(10) A person interested in an estate may apply to the Court to show that any sureties in an administration bond are insufficient.
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(11) Where letters have been issued and it is shown to the satisfaction of the Court that the sureties are not sufficient, the Court may direct an administrator to whom letters of administration have been granted or a foreign executor to furnish other security and, in default, may revoke the grant or suspend the operation of the grant.
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2009-26 |
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2.10Renunciation |
(1) A person
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(a) who is appointed an executor of a will may renounce probate of the will, or |
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(b) who is the next-of-kin of the deceased who has died intestate may renounce all rights to the administration of the property of the deceased |
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by filing with the clerk a renunciation in Form 2AA or 2BB and an affidavit of execution. |
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RULE 3 |
CONTENTIOUS BUSINESS |
3.01Caveats and Intervention |
(1) Where a caveat has been lodged under section 44 of the Act and an application for letters has been made or is thereafter made, no proceedings shall be taken upon the application for letters without notice being given to the person filing the caveat, unless he consents, until the caveat has been removed or is no longer effective.
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(2) A caveat shall be in Form 3A.
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(3) The person lodging the caveat shall state therein the nature of his interest in the property of the deceased and state generally the grounds upon which he lodges the caveat.
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(4) A caveat shall be signed by the person lodging it or by his solicitor and an address shall be given at which service may be effected.
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(5) A caveat shall be accompanied by an affidavit of the person lodging the caveat or by some person on his behalf in Form 3B showing the nature of his interest and that the caveat is not lodged for the purpose of delay or to embarrass any person interested in the estate.
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(6) A caveat remains in force for six months after it is lodged unless
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(a) it is sooner withdrawn or vacated, or |
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(b) a notice of intent to contest has been filed in accordance with paragraph (12), |
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and thereafter it is of no effect but at any time thereafter another caveat may be lodged. |
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(7) The person who lodges a caveat may withdraw it at any time by applying to the Court for an order to withdraw the caveat.
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(8) Where the Court finds a caveat that has been lodged to be vexatious, the Court may order it to be vacated.
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(9) Upon an application to vacate a caveat referred to in paragraph (8), the Court shall give all directions necessary for a summary disposition.
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(10) Where an application for letters probate of a will or letters of administration is made and a caveat has been or is lodged at any time before the letters are granted, the clerk shall immediately forward a copy of the caveat to the applicant or his solicitor.
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(11) The applicant or his solicitor shall send a warning in Form 3C to the person who entered the caveat, by registered mail, addressed to that person at the place named in the caveat.
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(12) The warning referred to in paragraph (11) shall state the nature of the application made and give the name and address of the applicant, and if a will is propounded, give the date of the will and shall call upon the person lodging the caveat to file a notice of intent to contest in Form 3D with the clerk within ten days after receipt of the warning if he desires to contest the application and to serve the notice upon the applicant.
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(13) Where the circumstances do not permit the lodging of a caveat under section 44 of the Act, a person interested in an estate may intervene in any proceeding before the application is determined by filing with the Court an intervention in Form 3E and an affidavit of intervention in Form 3F showing the nature of his interest.
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(14) A copy of the intervention and affidavit referred to in paragraph (13) shall be served upon the applicant by the intervener forthwith after the filing of the intervention.
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(15) Where an intervention has been filed, notice of all proceedings thereafter in relation to the estate in question shall be given to the intervener who, upon application to the court, may be made a party to the proceeding.
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(16) An intervener who is made a party to the proceeding shall be served by the applicant with a citation in Form 3G.
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3.02Directions for Trial |
(1) If a notice of intent to contest is filed by a person lodging a caveat and served upon an applicant, the applicant shall apply to the Court to have any other necessary parties added and the Court shall make an order to have a citation in Form 3G served on all concerned by the applicant.
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(2) Upon an application for proof of a will in solemn form or for revocation of a grant of letters probate of a will, or where in any proceeding the validity of a will is disputed, the Court may direct that any person having an interest in upholding or attacking the validity of the will be made a party to the proceeding.
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(3) All parties referred to in paragraph (2) shall be served by the applicant with a citation in Form 3G calling upon them to file a notice of intent to contest and warning them that in default they will be bound by the result of such proceedings as are taken in their absence.
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(4) A person served with a citation in accordance with Rule 3.01(16) or in accordance with paragraph (1) or (3) and desiring to be heard shall
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(a) file a notice of intent to contest in Form 3D with the clerk in the probate office stated therein within such time as is set out in the citation or within such further time as the Court allows, and |
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(b) serve the applicant with a copy of the notice of intent to contest, and |
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in default of filing such notice, he is not entitled to notice of any further proceeding. |
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(5) At the expiration of the time limited for the filing of a notice of intent to contest, the applicant shall apply to the Court for a hearing for further directions and shall, at least four clear days before the hearing, serve notice of the hearing upon all persons who have filed a notice of intent to contest.
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(6) At the hearing referred to in paragraph (5), the Court shall settle the issues, determine whether pleadings are to be delivered, determine whether production of documents and discovery are necessary, give all further necessary directions and fix the mode of trial.
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3.03Citation to Accept or Refuse Probate |
(1) Where an executor fails to bring in a will for probate, a person interested in the estate may apply to the Court for an order citing the executor to accept or refuse probate of the will, or to show cause why administration with the will annexed, as the case may be, should not be granted to the applicant or to such other person having a prior or equal right thereto who is willing to accept the same.
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(2) A citation to accept or refuse probate shall be by an order in Form 3H and may be ordered ex parte by the Court upon affidavit showing the facts upon which the citation is founded.
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(3) No citation to accept or refuse probate shall issue until after the lapse of seven days from the death of the testator.
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3.04Citation to Bring in a Will |
(1) A person interested in an estate may apply to the Court for an order citing a person to deposit in the probate office stated in the order any will in his possession or control, or to state under oath that no such document is in his possession or control.
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(2) Where it is shown to the satisfaction of the Court that a will may be in the custody of a person, a citation to bring in a will shall be in Form 3I and may be ordered ex parte by the Court upon an affidavit showing the facts upon which the citation is founded.
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(3) Where it is shown to the satisfaction of the Court that a person has knowledge of a will or other document or any asset relating or belonging to an estate, the Court may order that person to attend at a time and place named and to be examined about the will, document or asset referred to in the order.
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3.05Citation to Bring in a Detailed Inventory |
(1) A person interested in an estate may apply to the Court for an order calling upon the executor, administrator or trustee of the estate to deliver to the clerk in the probate office of the judicial district where the application is being made a detailed inventory of the assets of the estate and value thereof verified by affidavit.
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(2) Where it is shown to the satisfaction of the Court that further information should be provided disclosing details of the assets of an estate, a citation to bring in a detailed inventory shall be in Form 3J and may be ordered ex parte by the Court upon an affidavit showing the facts upon which the citation is founded.
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(3) If the applicant applying for a citation to bring in a detailed inventory is not satisfied with the sufficiency of the affidavit of the executor, administrator or trustee verifying assets of the estate and value thereof, he may apply to the Court, upon seven clear days’ notice, for an order directing further particulars to be furnished by a supplementary affidavit or as otherwise directed.
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3.06Citation where Intestacy |
(1) Where, upon an intestacy, letters of administration have not been issued, a person interested in the estate may apply for an order citing those who have an equal or prior right to administration to accept or refuse administration.
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(2) A citation to accept or refuse administration shall be in Form 3K and may be ordered ex parte by the Court upon an affidavit showing the facts upon which the citation is founded.
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(3) Where persons who have been cited in accordance with paragraph (2) do not accept or refuse administration within the period of time specified in the citation, the person applying for the citation may file an application for letters of administration.
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(4) No citation to accept or refuse administration shall issue until after the lapse of fourteen days from the death of the intestate.
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3.07Order to Bring in Letters for Revocation |
(1) Where it is sought to revoke letters, a person interested in the estate may apply for an order citing the person to whom the grant has been made to bring the letters into the probate office for the judicial district stated in the citation within the time specified in the citation.
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(2) A citation to bring letters into a probate office shall be in Form 3L and may be ordered ex parte by the Court upon an affidavit showing the facts upon which the citation is founded.
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(3) Where a citation has been issued under this subrule, the person to whom the grant has been made shall not commence or continue distribution of the estate without leave of the Court.
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3.08Passing of Accounts |
(1) Executors, administrators and trustees of an estate may pass their accounts voluntarily or they may be called upon by citation to do so in accordance with paragraph (2).
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(2) A person interested in an estate may apply to the Court for a citation ordering the executor, administrator or trustee of the estate to pass the accounts of the estate.
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(3) Where the Court is satisfied that accounts of an estate should be passed, the Court may make an order ex parte upon an affidavit showing the facts upon which the citation is founded.
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(4) An executor, administrator or trustee of an estate may pass the accounts by filing with the clerk for the judicial district where the letters were issued
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(a) an application to pass accounts in Form 3M, |
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(b) the inventory, if any, filed with the application for the original letters, or subsequently, |
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(c) accounts in accordance with paragraph (5) duly verified by an affidavit in Form 3N, |
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(d) a copy of the letters, and |
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(e) a copy of the previous order or orders, if any, made on a passing of accounts in the estate, |
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and upon receipt of the documents the Court shall fix a time and place for the passing of the accounts. |
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(5) The accounts of an estate shall contain a true inventory of the whole property in question, including:
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(a) an account showing of what the original estate consisted; |
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(b) an account of all money received; |
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(c) an account of all money disbursed; |
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(d) an account of all property remaining on hand; |
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(e) a statement of compensation claimed by the executor or administrator; and |
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(f) such other accounts as the Court requires. |
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(6) Where principal and income are dealt with separately by the will, the accounts shall be divided so as to show separately receipts and disbursements in respect of principal and income and in every other case the amounts may be so divided if the accounts of principal and income have been kept separate.
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(7) Where executors, administrators or trustees have made investments of trust funds, the accounts shall separately show particulars of
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(a) all money so invested; |
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(b) all money received by way of repayments of or realization upon such investments in whole or in part; and |
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(c) the balance of all such investments remaining on hand. |
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(8) The notice of the appointment to pass accounts shall be in Form 3O.
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(9) The applicant shall serve the notice referred to in paragraph (8) on each person interested in the estate and, where applicable,
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(a) the guardian of a person interested in the estate, or |
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(b) the Public Trustee or the representative appointed under the Supported Decision-Making and Representation Act. |
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(10) The Court may require that a notice to creditors be published as directed in relation to an application for the passing of accounts.
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(11) The order made by the Court upon passing of accounts shall be in Form 3P.
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(12) Upon passing accounts, the Court may fix the compensation to be paid to the executor, administrator or trustee in accordance with the Trustees Act.
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(13) An order made upon passing accounts shall be made in duplicate and one of the duplicates shall be filed with the clerk for the judicial district where the grant was made.
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(14) The order shall be served by registered mail or in such other manner as the Court directs upon the persons who attended or were represented at the passing of the accounts.
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2008-59, 2022, c.60, s.81 |
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RULE 4 |
GENERAL |
4.01Clerk’s Duties |
(1) The clerk shall keep such records as are required by the Registrar.
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(2) The applicable tax and fees shall be paid by the party on whose behalf the proceedings are taken and letters shall not be issued until the applicable tax and fees are paid.
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(3) Upon receipt of an application for letters probate of a will or letters of administration, the clerk shall forthwith submit the application to the Court.
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(4) The clerk shall number and date all applications for letters probate of a will or letters of administration filed in his office.
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(5) The clerk shall number, date and enter all caveats lodged with him in the same manner as applications for letters.
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(6) All written directions for judgment and every order of the Court shall be filed with the clerk.
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(7) Judgment may be signed and entered in the same manner as a judgment in The Court of King’s Bench of New Brunswick.
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(8) All letters probate of a will and letters of administration shall be issued in duplicate, one duplicate to be delivered to the applicant and one to be retained by the clerk.
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(9) The original will shall be attached to the duplicate of the letters retained by the clerk, and a copy of the will, certified by the clerk, shall be attached to the duplicate of the letters delivered to the applicant.
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(10) All letters probate of a will or letters of administration shall be signed by the clerk and issued under the Seal of the Court.
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(11) Upon the revocation of letters probate of a will or letters of administration, an entry thereof shall be made by the clerk across the face of the letters on file in the following form: “Revoked by Court Order, dated the day of , 20 .”
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(12) The clerk shall keep a proper index of all documents filed that they may be conveniently referred to when required.
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1999, c.29, s.10; 2023, c.17, s.210 |
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4.02Fees and Costs |
(1) The fees prescribed by Appendix A are payable in respect of proceedings in the Court.
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(2) The tariff of fees to be allowed solicitors practising in the Court is as prescribed by Schedule B.
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(3) The Court may take into consideration the complexity of an estate and vary the fees accordingly to be allowed solicitors up to the first passing of accounts.
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1999, c.29, s.10 |
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4.03Forms |
(1) The forms prescribed by these rules may be varied or modified as circumstances may require.
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(2) Where a form prescribed by these rules is used, it shall be identified by placing its number immediately after the title.
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(3) The name of each person who signs a document shall be typed, stamped or legibly printed beneath the signature.
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4.04Matters Not Provided For |
(1) Where any matter or procedure has not been provided for by these rules or the Act, the Rules of Court of New Brunswick apply.
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