What Rights Do Beneficiaries Have in a Newfoundland and Labrador Estate?

Being named in a will, or being entitled on an intestacy, does not mean you are owed a running commentary from the executor. But the law does give beneficiaries some information, standards of care and ways to go to court.

This article explains where those rights come from in Newfoundland and Labrador and how to enforce them if the estate is not being handled properly.

This article covers the law of Newfoundland and Labrador.

Where beneficiary rights come from

Your rights come from the will, the Judicature Act, the Trustee Act and Rule 56 of the Rules of the Supreme Court, 1986. If there is no will, the Intestate Succession Act sets the shares; for example, a spouse and one child means one-half of the estate goes to the spouse.

An executor generally needs a grant to deal with estate assets. An executor who acts without a grant may be liable if the will is later found invalid.

What information you can expect

Within 1 year after the grant issues, the holder must file in the registry an inventory and valuation, a statement of estate received, a statement of disbursements and a statement of the estate still outstanding.

Beneficiaries, creditors or sureties may seek an order on ten clear days' notice requiring an inventory and sworn account. Accounts must be accompanied by an inventory and sworn statement, but a judge may dispense with accounting if unnecessary.

The standards an executor must meet

• An executor who invests must exercise the care, diligence and skill of a reasonably prudent person.
• Acts in good faith in compromising claims carry no liability, and an executor may apply to court for directions.
• Before distributing, the executor notifies known creditors.
• The court may allow remuneration beyond actual expenses, not exceeding 1/20 of the realized value of the assets, and compensation set out in the will generally replaces it.

An executor is not liable for assets distributed to someone whose claim they had no notice of at the time, though a creditor can still follow the assets.

Enforcing your rights and challenging the estate

Any interested person may apply to remove an executor or administrator. A person who renounces probate stops acting as executor.

To oppose a grant, you enter a caveat in the registry. Once a caveat is entered, a grant cannot issue without the caveator being notified and heard, and the applicant must within one year start a proceeding to expunge it or to prove the will in solemn form.

A dependant, meaning a spouse, cohabiting partner or child, may apply under the Family Relief Act where a will does not make adequate provision, within 6 months after the grant. A cohabiting partner needs continuous conjugal cohabitation for at least 2 years, or at least 1 year if they are parents of a child together. A surviving spouse may also apply to divide matrimonial assets within 1 year after the first spouse's death, and those rights are in addition to will or intestacy rights.

What to do next

• Ask the executor for the inventory and a copy of the will.
• Note the date the grant issued so you can track the 1-year filing period.
• Write down any concerns about debts, sales or delays.
• Check the deadlines for any Family Relief Act or Family Law Act application.
• Speak with a lawyer before entering a caveat or applying to remove an executor.

Frequently asked questions