Regulations - Probate Court Practice, Procedure and Forms

(f) “court” means the court of probate for a probate district and, for the purposes of Sections 85, 86 and 87 of the Act includes a probate court under either of the former Acts;

(g) “extra-provincial grant” means a grant issued pursuant to Section 37 of the Act;

(h) “former Acts” means Chapter 238 of the Revised Statutes, 1967, the Probate Act and Chapter 359 of the Revised Statutes, 1989, the Probate Act;

(i) “grant” means a grant of probate or administration of the estate of a deceased person made pursuant to this Act, whether granted for general, special or limited purposes and includes administration with the will annexed and an extra-provincial grant and, for the purpose of Sections 85, 86 and 87 of the Act, includes a grant of probate or administration of the estate of a deceased person made pursuant to either of the former Acts, whether granted for general, special or limited purposes and includes administration with the will annexed and a re-sealing of probate or administration and ancillary probate or ancillary administration;

(j) “hearing” means the hearing of an application pursuant to these regulations;

(ja) “holograph will” means a will wholly in the testator’s own handwriting and signed by the testator;

(m) “person under a disability” means an infant or a mentally incompetent person;

(p) “probate district” or “district” means a probate district established by the Act;

(q) “property” means real or personal property and includes, for greater certainty, a chose in action;

(r) “registered domestic partner” means a person who has registered a domestic-partner declaration under the Vital Statistics Act;

(s) “registrar” means a registrar of probate and, for the purposes of Sections 85, 86 and 87 of the Act, includes a registrar of probate under either of the former Acts;

(u) “trust company” means a trust company that is authorized by law to act as a personal representative;

(v) “will” includes a testament, a codicil and every other testamentary instrument of which a grant may be issued.

3 (1) Where any practice or procedure respecting probate is not provided for by these regulations or the Act, the Civil Procedure Rules apply.

(2) Where any practice or procedure respecting probate is not provided for by these regulations or the Civil Procedure Rules, a court may make any order or decision concerning it that it considers necessary or appropriate in the circumstances.

(3) An order or decision of a court may be forwarded to the prothonotary of the Supreme Court who shall, on receipt of it, enter it as a record of the Supreme Court, and thereupon it becomes an order of the Supreme Court enforceable pursuant to the Civil Procedure Rules.

4 (1) Pursuant to Section 11 of the Act, the following oath is prescribed to be taken and subscribed before a judge of the Supreme Court by each registrar before entering upon the duties of the office of registrar:

I, , of in the County of , do swear that I will faithfully, diligently, honestly and impartially execute the duties of the office of registrar of the Probate Court of Nova Scotia in accordance with the Probate Act and all other applicable laws of the Province.

(2) Each registrar shall file a copy of the oath executed pursuant to subsection (1) with the Human Resources Division of the Department of Justice.

5 (1) Each registrar or a person designated by the Minister of Justice shall have the care and custody of all wills, documents, books, letters, transcripts, exhibits, papers and records of any kind belonging to the court.

(3) A registrar shall, upon request, provide a certified copy of any original will on file at the court for which a grant has been issued by the court.

(a) keep an index of all documents filed at the office of the registrar that lists the

(e) if an estate includes real property in the Province, forward to the appropriate Registrar of Deeds, in the case of a grant of

(i) probate or administration with the will annexed, a certified copy of the will and the grant, or

(ii) administration, a certified copy of the application for administration and the grant;

(f) record and maintain a summary of every activity and procedure with respect to each estate;

(h) attach the original of any will to the duplicate of the grant retained by the registrar;

(i) attach a copy of the original of any will, certified as a true copy by the registrar, to the duplicate of the grant delivered to the personal representative;

(j) endorse the date on which the grant is issued on the back of an application for a grant and sign the back of the application.

(5) A requirement in these regulations to record and maintain information and documents shall be deemed to include a reference to the corresponding computer storage and retrieval systems provided for that purpose.

(6) A registrar may issue a certificate of status of a grant in Form 1 confirming that a grant is in force and effect.

(7) Upon revocation of a grant, the registrar shall make an entry of the revocation across the face of the grant on file in the following form:

6 (1) A deputy registrar may perform any of the duties of a registrar and all acts done by a deputy registrar shall be as valid and effectual as if done by a registrar.

(2) If a vacancy occurs in the office of a registrar, the deputy registrar shall discharge the duties of the registrar and shall have all the rights and powers of the registrar until a registrar is appointed under the Act, and all acts done by a deputy registrar during the vacancy shall be as valid and effectual as if done by a registrar.

7 The days and hours during which the office of each registrar shall be open for the transaction of business shall be as prescribed by the Minister of Justice under the Court Officials Act.

8 (1) The seal already provided for a court shall continue to be used by the court to certify and authenticate documents respecting its proceedings.

(2) Despite subsection (1), the Governor in Council may determine and declare the seal to be used in the court by which its proceedings shall be certified and authenticated.

9 (1) All documents filed in a court shall be written on sheets of paper 21.59 cm in width and 27.94 cm in length.

(2) Despite subsection (1), a registrar may accept a document written on paper of a size other than the size set out in subsection (1).

(3) Except for wills, applications for grants, and inventories, all documents may be delivered to and filed with a court by telephone transmission in the same manner that documents may be delivered to and filed by telephone transmission with the Supreme Court, and the original signed document shall be delivered to the court.

(4) The forms contained in these regulations or any forms to the like effect that are acceptable to the registrar, shall be used for the purposes of the Act and these regulations.

10 (1) For the purpose of Section 29 of the Act and subject to subsection (2), the probate district in which the deceased resided at the time of death is deemed to be the probate district in which the deceased resided during the last 2 or more years of life.

(2) If the deceased did not reside in one probate district for 24 consecutive months prior to death, the registrar shall decide which probate district the deceased was resident in at death based on, but not limited to,

(a) the length of time the deceased resided in a probate district other than the one in which the deceased died; and

11 (1) This Section applies to proof of execution of wills other than holograph wills.

(1A) For an application for a grant of probate or administration with the will annexed, the due execution of the will shall be proved by an affidavit in Form 2 by one of the subscribing witnesses to the will.

Subsection 11(1) renumbered (1A) and amended: O.I.C. 2008-429, N.S. Reg. 356/2008.

(2) An affidavit in proof of execution of a will may be taken at or after the time the will is executed and either before or after the death of the testator.

(4) If no affidavit in proof of execution of a will can be obtained from a subscribing witness, the due execution of the will may be proved by

(a) an affidavit attesting to the authenticity of the signature of the deceased and the signature of either of the subscribing witnesses; or

(b) an affidavit from any person present at the execution of the will who can attest to the circumstances of the execution of the will.

(5) If an applicant for a grant is unable to comply with subsection (4), the applicant may file an affidavit attesting to the efforts made to locate the subscribing witnesses or other persons present at the execution of the will, and the registrar may accept the affidavit in place of proof of execution of the will.

(6) If a will is that of a person who at the time of the execution of the will was a member on active service of the Canadian Forces, or a mariner or seafarer at sea or in the course of a voyage, and it appears that the witnesses are dead or incompetent or that the whereabouts of the witnesses are unknown, the registrar may accept such evidence as the registrar considers satisfactory as to the validity and proper execution of the will.

(7) If an applicant for a grant is having difficulty locating witnesses to a will executed by a member of the Canadian Forces referred to in subsection (6), the applicant may obtain a statement from the National Archives of Canada confirming that the deceased served in the Canadian Forces and was on active service with the Canadian Forces when the will was executed and the statement shall be sufficient proof of the execution of the will.

(e) indicated an intention to give effect to the will by having another person sign at the direction of the deceased,

the applicant for a grant respecting the will shall satisfy the registrar that the deceased and the witnesses were present when the will was signed, that the will was fully explained to the deceased and that the deceased appeared to the witnesses to fully understand the will.

(9) If a registrar, deputy registrar, notary public or barrister of the Supreme Court is not available to take an affidavit in proof of execution of a will, the person seeking to prove the execution of the will shall obtain written approval from the registrar for another person to take the affidavit.

(10) If it appears to the registrar that the execution of a will does not comply with the requirements of the Wills Act respecting wills other than holograph wills, the registrar shall refuse to approve the application for a grant respecting the will.

11A(1) For an application for a grant of probate or administration with the will annexed made respecting a holograph will, the due execution of the holograph will shall be proved by an affidavit in Form 2A.

(2) An affidavit in Form 2A may be taken at or after the time the holograph will is executed and either before or after the death of the testator.

(4) If a registrar, deputy registrar, notary public or barrister of the Supreme Court is not available to take an affidavit in Form 2A, the person seeking to prove the execution of a holograph will shall obtain written approval from the Registrar for another person to take the affidavit.

(5) If it appears to the registrar that the execution of a holograph will does not comply with the requirements of the Wills Act respecting holograph wills, the registrar shall refuse to approve the application for a grant respecting the will.

12 (1) If a will is written in a language other than English, the applicant for a grant respecting the will shall provide an affidavit in Form 3 verifying the translation of the will into English.

(2) A registrar may require any document written in a language other than English and referred to in a will to be translated into English, and where the registrar so requires, the applicant for a grant respecting the will shall provide an affidavit in Form 3 verifying the translation of the document into English.

(3) The original of the English translation of a will referred to in subsection (1) or a document referred to in subsection (2) together with the original will or document and an affidavit in Form 3 must be attached to the application for a grant respecting the will.

(4) A certified copy of the English translation of a will referred to in subsection (1) or a document referred to in subsection (2) together with a certified copy of the original will or document shall be attached to the duplicate grant respecting the will delivered to the personal representative.

13 (1) If a will is amended by a codicil or other testamentary instrument, the date of the last codicil or other testamentary instrument is deemed to be the effective date of the will.

(2) If a will is not dated or is dated imperfectly, the registrar may require one of the subscribing witnesses to provide such evidence as is satisfactory to the registrar to establish the date of execution of the will.

(3) If the evidence referred to in subsection (2) cannot be obtained, the registrar may require the applicant for a grant respecting the will to provide such evidence as is satisfactory to the registrar to establish that

14 (1) If a will refers to a document, raising a question as to whether the document ought to form part of the will, the registrar shall require production of the document and ascertain if it should form part of the will.

(2) Where a document referred to in subsection (1) is not produced, the registrar shall require that its non-production be accounted for by the applicant in a manner satisfactory to the registrar.

15 A personal representative or a person interested in an estate may apply to a court, or to the Supreme Court where Sections 45 through 55 of the Act apply, for directions for bringing any matter before the court or the Supreme Court.

16 (1) Subject to subsection (2), a person interested in an estate may act on their own behalf or be represented by a solicitor.

(2) Where a person interested in an estate is under a disability, that person shall be represented by a solicitor, court appointed guardian under the Incompetent Persons Act or the Guardianship Act, attorney appointed under the Powers of Attorney Act, the Public Trustee, where the Public Trustee consents, or a guardian ad litem appointed by the court in Form 4.

17 A court, in its discretion and where it considers it necessary in any proceeding, may

(a) appoint an interpreter to interpret in open court or translate or decipher any document; and

(b) make a reasonable allowance for the interpreter’s service to be paid in the first instance by the party who requires the service and ultimately to be borne by the estate, or the party against whom costs, if any, are awarded.

(c) direct that notice of the hearing be served on the persons who are required by the Act and these regulations to be served.

19 Each order of a court granted by a judge or registrar shall be marked accordingly.

21 Where a person has been given notice of an application or other proceeding and does not attend the hearing arising from the application or other proceeding, the hearing may proceed despite the failure of the person to attend.

22 (1) Unless service is otherwise specified in these regulations, service of all notices and other documents required to be served under these regulations shall be by personal service, registered mail, service on a lawyer authorized to accept service on behalf of a person or such other means as directed by a registrar or a court.

(3) Where any provision in these regulations specifies that service is to be effected by ordinary mail, the notice or other document to be served shall be sent to the most recent address given to the court.

(4) Where a person entitled to share in the distribution of an estate is a person under a disability, all notices and other documents required to be served under these regulations shall be served on a parent, guardian, court appointed guardian, or attorney under the Powers of Attorney Act, for that person.

(a) by affidavit in Form 5 or by a method acceptable to the court, and where service is by registered mail the Canada Post registration receipt shall be attached; and

23 (1) A court may issue a subpoena in Form 6 to require the attendance of a witness or the production of any document material to the matter pending before the court.

(3) No person is bound to appear or give evidence pursuant to a subpoena unless the person is paid or tendered witness fees in the amount of $5.00 plus $0.20/km one way from the place of residence of the person to the place of the hearing not less than 4 days before the date set for the hearing.

(a) every proceeding and matter pending and all unfinished business before that registrar or judge may be taken up, carried on and disposed of by another registrar or judge or the successor of the registrar or judge who vacates office, and no new application or other proceeding is necessary in that case;

(b) evidence taken before that registrar or judge in any matter that has been heard and not determined or partly heard by that registrar or judge, may be used in a subsequent hearing, and the taking of the evidence again is not necessary;

(c) all orders that were pronounced but not drawn up or sealed by that registrar or judge may be drawn up and sealed by another registrar or judge or the successor of the registrar or judge who vacates office.

25 Where an application pursuant to the Act is made to a registrar and the registrar intends to transfer it to a judge in accordance with Section 99 of the Act, the registrar shall not hear any evidence or make any determination but shall refer the matter to the judge and notify the applicant of the transfer.

(2) For the purposes of this Part, non-contentious business means the obtaining of a grant where there is no contention as to the right to the grant and includes

(a) the obtaining of a grant in contentious cases where the contest has been concluded; and

(b) all non-contentious matters relating to testacy and intestacy that are not proceedings under Part IV.

(b) grants that are for a limited time, including a grant of administration during the minority, absence or mental incompetence of the personal representative;

28 (1) An applicant for a grant that is to be limited in any manner shall ensure that the limitation is clearly indicated on the application.

(2) If a grant is limited in any manner, the registrar shall ensure that the limitation is clearly indicated on the grant.

29 A person entitled to apply for a grant who does not do so at the time the initial application for the grant is made, may reserve the right to apply at a future time by filing Form 7, 7A or 7B with the court at the time the initial application for the grant is made.

30 (1) An applicant for a subsequent grant shall surrender the original grant with the application for the subsequent grant prior to a subsequent grant being issued by a registrar.

(2) If the original grant is lost, an applicant for a subsequent grant shall submit a copy of the original grant, certified by the registrar, with the application for the subsequent grant.

31 (1) Upon the death of an administrator, a person entitled to a grant under Section 32 of the Act may apply for a grant of administration of the unadministered property of the intestate person.

(2) Upon the death of an executor, an application may be made to a court for a grant to complete the administration of the unadministered property of a testate person by the following persons in the following priorities:

(a) first - an alternate executor named in the testate person’s will who is willing and able to act; or

(b) second - an executor of the deceased executor who is appointed by the court; or

(3) If the personal representative of a testate person is discharged and there is no alternate executor named in the will, a person who is entitled to a grant under Section 32 of the Act may apply for a grant of administration with the will annexed of the unadministered property of the testate person.

(4) An applicant shall file the same form of application under subsection (1), (2) or (3) as filed in the original application for a grant but shall modify it to include