What Can Delay or Stop a Probate Grant in BC?

If your probate application seems stuck, the cause is often a missing step rather than a problem with the will. Most delays come from notice, paperwork, fees or a dispute.

This article walks through the common causes in British Columbia so you can check your own file. How long a registry takes varies, so a lawyer can help if you cannot find the cause.

This article covers the law of British Columbia.

Notice problems

Before applying, the applicant must deliver a Notice of Proposed Application in Relation to Estate in Form P1. Where there is a will, it goes to the named executors and alternates with a prior or equal right to apply, the beneficiaries, certain persons who would inherit on intestacy, and the Attorney General if the government is entitled to the estate under the Escheat Act.

• The application cannot be made until at least 21 days after the notice and materials are delivered.
• Mailed notice is deemed delivered on the mailing date. Notice by email or fax only counts if the recipient gives a written acknowledgement of receipt.
• If a person entitled to notice has died, notice goes to their personal representative.
• Notice for a minor or a mentally incompetent person also goes to the Public Guardian and Trustee, except that it is not needed for a minor if the applicant is an executor, the minor is not the deceased's spouse or child, and the will creates a trust for the minor and appoints a trustee.

On application, the court may vary who must receive notice, or dispense with delivery to anyone other than the Public Guardian and Trustee.

Gaps in the filing package

Under Rule 25-3(2), your filing includes a submission for estate grant in Form P2, the applicant's affidavit (Form P3, P4, P5, P6 or P7, depending on the type of grant), Form P9 affidavits of delivery of the notice, two copies of a wills notice search certificate from Vital Statistics, and an affidavit of assets and liabilities in Form P10, or Form P11 where it applies. A wills notice search must be submitted with every application, even if you believe you hold the original last will.

If the will is a physical will made with witnesses present, you must file the originally signed will, unless the original is unavailable, in which case you may file a physical copy or PDF copy instead. The affidavit of assets and liabilities may be filed with the other documents or later.

The court must have proof that the will is valid, or that the person died without one, and proof of the deceased's connection to British Columbia. How a defect in the will or a missing original affects your application depends on your situation, so it is worth confirming with a lawyer early.

Disputes, citations and variation claims

A person entitled to notice, or someone claiming under an earlier or later will, can oppose the grant by filing a notice of dispute in Form P29. It generally stops being in effect one year after it is filed. The court filing fee for it is $80.

A person interested in the estate can push a named executor to act by personally serving a citation in Form P32, which requires the executor to apply for probate. The cited person must respond within 14 days after being served.

A spouse or child making a wills variation claim must start it within 180 days from the date the representation grant is issued, and serve the executor within a further 30 days. Because that period runs from the grant, whether a variation claim affects your application depends on the facts, so ask a lawyer.

Executor and fee issues

• If there is no will, no named executor, or the executors cannot or will not act, someone applies for a grant of administration instead.
• An applicant for administration does not have to provide security unless a minor or mentally incapable person without a nominee is interested, or the court requires it.
• The personal representative must pay the probate fee before the grant is issued.
• A named executor may renounce the appointment, which ends their executorship unless a court orders otherwise.

An applicant must also have made a diligent search for the deceased's property and liabilities. An incomplete asset list can hold things up.

What to do next

• Confirm every person entitled to notice received it, and that you have the acknowledgements or mailing records.
• Count at least 21 days from delivery before you apply.
• Check the filing package against the list of required documents.
• See whether anyone has filed a notice of dispute or served a citation.
• Ask the registry what is outstanding, and speak with a lawyer if the cause is a dispute or a defect in the will.

Frequently asked questions