COMMON ERRORS IN ESTATE APPLICATIONS

Transcription

1 COMMON ERRORS IN ESTATE APPLICATIONS These materials were prepared by Jan Kernaghan, Court of Queen's Bench, Regina, Saskatchewan for the Saskatchewan Legal Education Society Inc. seminar, Estate Administration tor Legal Support Staff, May, 1999

2 COMMON ERRORS IN ESTATE APPLICATIONS 1. The names of the applicant(s, the deceased and the beneficiaries should be identical to the name's as shown in the Will. If the names are different, the reason for the difference should either be described in the Application, or, an Affidavit ofidentity should be filed with the Application. 2. The Application should show if the Applicant is the Executor or an alternate Executor. If one of the Executors named in the Will is not applying, the Application should show the reason for their not doing so, ego they predeceased the Testator or have renounced their right to apply. It is not sufficient to simply submit the Renunciation.. Judges do not like to make inferences. (Rule 699(1(c and Rule 704(3. 3. On Applications for Administration (with or without will annexed, all persons having a prior or equal right to the Applicant must be cleared off by Renunciation. If the Application is for Adriiinistration withotit bond, as most are, these persons must also consent to the order,dispensing with the bond. All persons who inay be beneficially. interested in the estate, but do not have an equal or prior right to appointment, must only consent to the order dispensing with the bond; they do not have to execute a RemUlciation. 4. The application must disclose the age of the testator at the time of making the Will to verify that he or she was of the full age of majority when they made their Will. (Rule 706(1(a The age of majority has changed several times over the years: 21 years - Prior to June 30, years - From June 30, 1970 to June I, years - After June I, The word "child" refers to any person under the age of eighteen who may have an interest in the estate, not just a child of the deceased. If a child or dependent adult does have an interest in the estate, a Notice'to the Public Trustee must be submitted: in duplicate with,all,of the documents

3 referenced in the Notice to the Public Trustee attached. (Rule 699(2 6. The statement that the marriage of the testator was not terminated or declared a nullity between the making of the will and the date of death must be contained in every Application for Probate or Letters of Administtation With Will Annexed. (Rule 706(1(d. 7: If the Application is for administration without bond, a statement to this effect must be included in the last paragraph ofthe Application. 8. If there is more than one Applicant, you can either prepare separate 'affidavits for each Applicant or prepare one affidavit for all of the Applicants. If one affidavit is prepared, the first paragraph should be in the first person plural, "We, John Doe and Jane Doe", and each paragraph thereafter should be in the first person singular, "I", Also"the word "severally" should precede the words -"make 'oath and say". If the Affidavit is sworn by more than one deponent at the same time and place, the jurat must say, "Severally sworn before me by each of the above named deponents". If sworn by more than one'deponent at a different time or a different place, multiple jurats are used, each starting "Severally sworn by the above named... " 9. If an Affidavit is sworn in Canada, but outside the Province of Saskatchewan, it must be sworn before a Notary Public, not a Commissioner for Oaths. 10. The Statement of Assets should show the value of the assets as of the date of death. If the title of the propetty is in two names (tenants in common, one-half of the value of the propetty will be included in the probate value. The only deduction that Can be made from the assets in Part I is that of a mortgage relating to real propetty only. An outstanding loan should not be deducted from the Part I assets as this is a debt that is to be paid by the estate. Assets to be listed in Part II include real property or bank accounts held in joint names with right of survivorship, insurance policies payable to a named beneficiary (not the estate, and propetty located outside of S!jSkatchewan. If the will refers to a specific asset(s which the Testator hed at the time of making thy will but did not have at the date of death, an explanation of what has happened to the asset(s, ego shares in a private

4 corporation were transferred before death to a son or daughter or the testator had left the business of fanning, should be included in the sworn material filed in support of the application. II. When applying for administration without bond, an Affidavit Re: Debts must be filed; a statement of debts is not sufficient. The affidavit must also include the inquiries which have been made in order to ascertain that there are no debts owing. If there are debts owing, the Consents of all the creditors listed in the affidavit to the appointment of the administrator without bond must be filed with the Application. 12. On Applications for Rese"lea Letters, two copies ofthe original Grant must be filed. The copy which is physically resealed by the Local Registrar can only be the "original" or a "court certified copy", not a notarial copy. The second copy which is exhibited to the Affidavits can be a notarial copy, but not a photocopy. 13. On Applications for Resealed Letters where there is land involved (which is almost always the case, an Affidavit of Execution of Will must be submitted (or a court certified copy of the Affidavit of Execution of Will which was filed in the original jurisdiction i's accepted, if similar to ours. British Columbia, for example, does not require an Affidavit of Execution of Will to be filed with an Application for Letters Probate. If applying for resealing of Letters Probate from a jurisdiction like British Columbia, it would be necessary for the Applicant to obtain and file an Affidavit of Execution of Will with their Application for Resealed Letters Probate in Saskatchewan. 14. Certificates Re: No Infants are now being issued by the Court of Queen's Bench, however, the only time these Certificates can be issued by the Local Registrar's Office is if they are requested and paid for at the same time as the Application is filed. At any other time, they must be requested from the Public Trustee's Office. 15. Certificates Re: No Infants are only required when there is real property listed in Part I of the Statement of Assets.

5 HELPING THE PAPER FLOW Only one title page is required. This is where the court records the till imprint. If an application is rejected, the title page, is retained by the court bec~use this is our record for the auditors. If a Nptj,ce to Public Trustee is being filed, it requires its own cov~r page a~ this document is forwarded by the court to the Public Trustee. Don't file the hard backing (blue back of the Will. It is very awkward on our files..file the Renunciat~ons in the same order~s the next-of-kin ~ppear i~ the Jiletition. Do not place exhibit stamps on any of the following: the face of the original Will; the backing that is usually attached to a Will; the title page; a blank sheet of p~per, inserted in the material next to the document referred to in I,,', the Affidavit.