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

(5) An inventory setting out the unadministered property of the deceased as of the date of the application for the grant respecting the unadministered property shall be filed by the personal representative within 3 months from the date of a grant of unadministered property whether or not an inventory was filed under the original grant.

(6) If the first grant was advertised in the Royal Gazette, a second advertisement is not required.

(7) An application under subsection (1), (2) or (3) shall be accompanied by security and probate taxes, if required under the Act.

32 (1) In this Section, “extra-provincial grant” means a grant issued by the court in respect of a grant or an order to the like effect made by an authority outside the Province.

(2) If a grant or order made by an authority outside the Province does not appoint a personal representative, a registrar may appoint a personal representative in accordance with Section 32 of the Act.

(3) If evidence as to the law of any country or territory outside the Province is required by the court respecting an application for an extra-provincial grant, the registrar may accept

(a) an affidavit of any person who, having regard to the particulars of the person’s knowledge or experience given in the affidavit, the registrar regards as suitably qualified to give expert evidence of the law in question; or

(b) evidence of the court or authority outside the Province that issued the grant.

(4) Unless the court dispenses with the giving of security pursuant to Section 40 of the Act, the registrar shall not issue an extra-provincial grant until security has been given to the court in a sum sufficient to cover the assets of the deceased in the Province in the amount that the court would require if the application were for an original grant.

(5) The inventory filed pursuant to Section 57 of the Act for an extra-provincial grant shall include only the assets of the deceased in the Province.

(3) An application for a grant of administration with the will annexed shall be in Form 10 or 10A.

(4) An application for an extra-provincial grant shall be in Form 11, 11A or 11B.

(5) Despite subsections (1), (2), (3) and (4), where a prescribed form is not appropriate for an application for a specific grant, the applicant for the grant may file an application in a form acceptable to the registrar.

(6) If there is more than one applicant for a grant, joint or separate applications may be used.

(7) All applications shall be accompanied by a covering letter indicating the number of certified copies of the grant and certificates of status required.

34 (1) An executor who wishes to renounce the right to apply for a grant in accordance with Section 19 of the Act, shall do so by completing Form 12 or by another method satisfactory to the registrar.

(2) An executor whose right to act is alternate to another, shall state in an application for a grant that the executor having a prior right has renounced, or died, as the case may be, and the renunciation in Form 12 or proof of death satisfactory to a registrar shall be attached to the application for the grant.

(3) A person who is entitled in priority or equally to be named a personal representative under Section 32 of the Act who is unable or unwilling to apply for a grant, shall renounce the right to apply for the grant by

(4) If a person with a prior or equal right to a grant under Section 32 of the Act has not renounced the right to apply for a grant in accordance with this Section or where there is a contest over the right to administer an estate, an applicant for a grant shall make an application under Section 64 and may include an application in the form prescribed in Section 33 with that application.

(a) any renunciation required pursuant to this Section has been filed with the registrar by the applicant for the grant; or

(b) an order has been made dispensing with the need for any renunciation that has not been filed.

35 (1) A nomination of a person as administrator of all or part of the property of a deceased person pursuant to subsection 32(4) of the Act shall be in Form 15 or 16 or by another method satisfactory to the registrar and shall require the consent of the Public Trustee.

(2) A registrar shall not issue a grant to a nominee administrator pursuant to subsection 32(4) of the Act unless

(a) a renunciation, nomination and consent in Form 15 or 16 signed by each person who is entitled to nominate an administrator under subsection 32(4) of the Act and the Public Trustee has been filed; or

(b) an order has been made dispensing with the need for any renunciation and nomination that has not been filed and the consent of the Public Trustee has been filed.

(i) for a will other than a holograph will, an affidavit of execution of the will in Form 2 or such other evidence of due execution of the will as is required under Section 11, or both,

(ii) for a holograph will, an affidavit in Form 2A or such other evidence of due execution of the will as is required under Section 11A, or both;

(d) a renunciation in Form 12 from each living person who is named in the will as an executor and who has not joined in the application, if applicable;

(b) a renunciation in Form 13 from each person who is entitled in priority or equally to be named as an administrator under Section 32 of the Act and has not joined in the application, if applicable;

(c) the nomination of the applicant to their appointment in Form 15 signed by each person who is entitled to nominate an administrator under subsection 32(4) of the Act and the Public Trustee, if applicable;

38 An application for a grant of administration with the will annexed shall be accompanied by

(i) for a will other than a holograph will, an affidavit of execution of the will in Form 2 or such other evidence of due execution of the will as is required under Section 11, or both,

(ii) for a holograph will, an affidavit in Form 2A or such other evidence of due execution of the will as is required under Section 11A, or both;

(d) a renunciation in Form 12 from each person who is named in the will as executor and who has not joined in the application, if applicable;

(e) a renunciation in Form 14 from each person who is entitled in priority or equally to a grant under Section 32 of the Act and who has not joined in the application, if applicable;

(f) the nomination of the applicant to their appointment in Form 16 signed by each person who is entitled to nominate an administrator under subsection 32(4) of the Act and the Public Trustee, if applicable;

(a) 2 certified copies of the original grant or order to the like effect under the seal of the court that granted it and a certificate under the seal of that court stating that the original grant or order is still in effect;

40 If an application for a grant or material required to accompany the grant are incomplete, the registrar may issue a notice of rejection in Form 17 by ordinary mail to the applicant.

41 (1) For the purposes of the taxes collected under the Act and the security and inventory required under the Act, the “value of the estate” means the value of the assets of a deceased person calculated on

(b) the fair market value of the real property of the deceased less the amount of any mortgages and encumbrances registered against the real property at the Registry of Deeds for the probate district in which the real property is located,

that passes by a will or wills, or that transfers or will be transferred to a trust under a will or wills, whether or not the trust described in the will is described as being separate from the estate, or that passes upon intestacy.

(2) For the purposes of subsection (1), a mobile home is deemed to be real property and any mortgages and encumbrances registered against the mobile home at the Personal Property Registry or the Registry of Deeds for the district in which the mobile home is located shall be deducted from the fair market value of the mobile home.

(4) Where a court has reason to believe that the value of the estate exceeds the sum stated in the inventory, the court may inquire into the matter.

(a) a bond or policy of guarantee of a guarantee company as defined in the Sureties Act, in Form 18;

(a) one surety if the value of the estate is $100 000 or less, unless the registrar otherwise directs;

(b) at least 2 sureties if the value of the estate exceeds $100 000, unless the registrar otherwise directs.

(4) The registrar may allow more than 1 bond or other security to be given so as to limit the liability of a surety, but the total value of all securities given shall be equal to the amount of the security required pursuant to clause 2(b).

(b) together with the other surety or sureties, if there is more than one surety, have property of a value equal to or greater than the amount of the security required under clause (2)(b) over and above the total amount of all mortgages and encumbrances registered against the property at the Personal Property Registry or the Registry of Deeds for the district in which the property is located.

(6) No personal representative of a deceased person or spouse of a personal representative of a deceased, shall be a surety for the estate of the deceased.

(7) The registrar may, after considering the interests of the persons who have a financial interest in an estate, reduce the amount of security required pursuant to clause 2(b).

(8) On application by a person interested in an estate and on being satisfied that a condition of a bond or other security for the estate has been breached, the registrar may make an order to assign the bond or other security to a person named in the order.

(9) The person to whom a bond or other security is assigned under subsection (8) and their heirs and personal representatives are entitled to the same rights under the bond or other security as if the bond or other security had been originally given to that person.

(10) On application by a person interested in an estate and on being satisfied that the security for the estate has become inadequate or insufficient, the registrar may order the estate’s personal representative to provide alternate or additional security.

(11) If a non-resident executor wishes for a court to dispense with the giving of security pursuant to subsection 40(3) of the Act, the non-resident executor shall file with the court

(a) an affidavit containing the names of all persons who are or may be beneficially interested in the estate of the deceased and stating that all these persons are competent adults; and

44 (1) A personal representative of an estate shall, within 20 days after a grant has been issued, serve notice of the grant to each person who is or may be entitled to share in the distribution of the estate, in the appropriate form as follows:

(2) Proof of service of a notice pursuant to subsection (1) shall be in Form 28 and shall be filed by a personal representative of the estate within 60 days after the grant for the estate has been issued.

(3) Despite subsection (2), the time for filing proof of service may be extended, at the discretion of the registrar.

45 (1) The inventory of the property of the deceased which is required by Section 57 of the Act to be filed within 3 months after a grant has been issued, shall be filed by the personal representative in Form 29.

(2) A supplemental inventory required to be filed by Section 58 of the Act shall be in Form 29 with any necessary modifications.

46 (1) A notice pursuant to subsection 57(2) of the Act requiring a personal representative to file an inventory shall be in Form 30.

(2) A notice referred to in subsection (1) shall be sent by ordinary mail to the personal representative or to the lawyer representing the personal representative.

(3) If a personal representative fails to comply with the notice referred to in subsection (1), the court may make an order pursuant to subsection 57(3) of the Act for the personal representative to file the inventory.

(4) If a personal representative fails to file an inventory after an order is made pursuant to subsection 57(3) of the Act, a person may make application to the court to remove the personal representative pursuant to clause 61(1)(a) of the Act.

47 A personal representative of an estate who is advertising the estate information in accordance with subsection 63(1) of the Act shall do so in Form 31 upon issuance of the grant for the estate.

(b) serve the personal representative of the estate with a copy of their claim, as filed,

(2) A creditor or claimant who has not complied with subsection (1) may make a claim against an estate only with the prior consent of the court.

(3) If a personal representative of an estate does not agree with all or part of the claim of a creditor or claimant against the estate, the personal representative shall

(4) A creditor or claimant whose claim against an estate is contested may have the claim dealt with

(a) on the passing of the accounts of the personal representative and the settlement and distribution of the estate under Part III; or

(b) by commencing an application for an order under Part IV by filing with the court and serving on the respondent

49 After an estate has been advertised for the required time period in accordance with subsection 63(1) of the Act, the personal representative of the estate may file an affidavit with the court, containing

(a) a schedule of bad or doubtful debts including the particulars of dates, names and amounts; and

(b) the particulars of the efforts to collect the debts and confirmation that the debts are unlikely to be collectable.

50 Upon the application of a personal representative of an estate or a person interested in an estate, the court may make an order

(a) for the equitable division of the bad debts referred to in Section 49 among the creditors and those persons entitled to benefit from the estate; or

(b) appointing one or more persons to make the division referred to in clause (a), subject to confirmation by the court; or

51 (1) After an estate has been advertised for the required time period in accordance with subsection 63(1) of the Act, the personal representative of the estate may file an affidavit in Form 34 for an order declaring the estate to be insolvent.

(a) a list of the debts of the deceased, including those that are paid and unpaid;

(3) An order declaring an estate insolvent pursuant to subsection 83(1) of the Act shall be in Form 35 and shall set a date for the settlement of the estate.

(4) A personal representative of the estate shall serve a copy of an order made pursuant to subsection 83(1) of the Act upon each person who has an interest in the estate.

(5) For the purposes of clause 83(3)(d) of the Act and subject to Section 68 of the Act, “medical expenses” includes private nursing and home care expenses of the deceased.

52 (1) Subject to subsection (2), a person interested in an estate is, for the purposes of this Part, any

(e) trustee, guardian, court-appointed guardian or attorney appointed under the Powers of Attorney Act for a person under a disability;

(f) trustee, guardian, court-appointed guardian or attorney appointed under the Powers of Attorney Act for a missing person or unascertained person;

(h) unpaid claimant or creditor who has filed a claim in accordance with Section 48;

(2) A person who has signed a release in Form 36 is not, for the purposes of this Part, a person interested in an estate.

53 (1) A personal representative of an estate shall give the court an accounting of the administration of the estate by applying in accordance with Section 55 for an order passing the accounts of the estate

(a) within 18 months of the date of the grant unless the court orders an extended period;

(b) when the personal representative desires to be discharged pursuant to subsection 61(2) of the Act; or

(2) Before a personal representative of an estate is removed by a court order pursuant to Section 61 of the Act, the personal representative shall account for the administration of the estate up to the time of their removal, in accordance with Section 55.

(3) If a personal representative fails to comply with subsection (1) or (2), the court may order a personal representative to pay the costs of, and incidental to, an independent accounting of the administration of the estate.

54 Despite Section 53, if a personal representative of an estate determines that an accounting of the administration of the estate is not required, in accordance with subsection 69(3) of the Act, the personal representative shall file an affidavit in Form 37 with the court together with all required consents in Form 38 in lieu of an application to the court for an order to pass the accounts of the estate.

55 (1) A personal representative of an estate who is applying for an order pursuant to subsection 53(1) shall file with the court

(a) an application in Form 39 for a passing of accounts by a hearing or Form 40 for a passing of accounts without a hearing;

(2) Upon receiving an application under subsection (1), the registrar shall set the date and time for passing the accounts of the estate, which shall be not less than 45 days from the date of receipt of the application.

(3) Upon filing an application pursuant to subsection (1), a personal representative shall serve

on each person interested in the estate not less than 30 days before the date set to pass the accounts.

(4) A personal representative shall file an affidavit respecting the application filed pursuant to subsection (1) in Form 43 with the court not less than 10 days before the date set for passing the accounts.

(5) Where no completed notice of objection is filed with the court pursuant to Section 58, an application under this Section may proceed, without further notice.

56 (1) After the expiration of 18 months from the date of the grant or such longer period as the court may have allowed for an accounting to be provided pursuant to subsection 69(1) of the Act, a person interested in an estate may apply to the court for an order requiring the personal representative to apply to have the court pass the accounts of the estate.

(2) A person making an application pursuant to subsection (1) shall file an application pursuant to Section 64.

(3) A beneficiary of a specific gift under a will is entitled to an accounting in respect of that gift only but once the gift has been received by the beneficiary, the beneficiary is no longer entitled to that accounting.

57 (1) A personal representative of an estate shall keep accurate records of all property and debts of the estate and all activity in the estate.

(a) a statement of all property of the deceased at the beginning of the accounting period;

(b) a statement of all adjustments to the value of the property of the deceased during the accounting period;

(d) a statement of all disbursements made during the accounting period for the payment of any debts or expenses incurred;

(f) a statement of all property remaining undistributed and the proposed distribution of that property;

(g) a statement of the commission sought for the personal representative, if any;

(5) If a will deals separately with capital and income, the accounts shall distinguish entries respecting capital from entries respecting income.

(6) A court may require further particulars of any account presented to the court.

58 (1) If a person interested in an estate objects to the accounts of the administration of the estate or any part of the accounts, the person shall, not less than 10 days before the date set for passing the accounts, file a notice of objection in Form 42 with the court and serve a copy of the notice of objection on the personal representative of the estate.

(2) If a notice of objection is filed pursuant to subsection (1), the application to pass the accounts shall proceed by a hearing.

(3) If a person has not filed and served a notice of objection in accordance with subsection (1), the person

(a) is deemed to have consented to the administration of the estate as contained in the accounts; and

(b) may only make representations at any scheduled hearing with the permission of the court.

59 (1) On passing the accounts of an estate, a court may, in addition to the powers set out in Sections 71 and 72 of the Act,

(b) direct a personal representative of the estate to vary or amend the accounts of the estate;

(c) set the commission for a personal representative of the estate in accordance with Section 76 of the Act and give any direction in that respect;

(d) approve the compensation of an accountant or other skilled person appointed pursuant to Section 74 of the Act;

(e) require the production of bank or other financial statements or any documents relating to the administration of the estate; and

(f) require the production of vouchers, receipts and releases for all debts paid and expenditures and distributions made during the accounting period for the estate;

(h) adjudicate a disputed matter in accordance with Sections 66 or 71 of the Act, and set the procedure the parties shall follow and time limits, if appropriate.

(2) Despite clause (1)(f), the registrar, in the registrar’s discretion, may allow any item of expenditure or distribution without the production of a voucher, receipt or release, upon the filing of an affidavit in support of the expenditure or distribution.

(3) An order made by a court pursuant to Section 72 of the Act and this Section shall be in Form 41.

60 (1) An accountant or other skilled person who is appointed pursuant to Section 74 of the Act to investigate the accounts of an estate shall be a chartered accountant, a certified general accountant, a certified management accountant, or an accountant acceptable to a court.

(2) A court shall determine the nature, scope and extent of the duties of an accountant referred to in subsection (1) and the time within which their investigation is to be completed.

(3) Any person having knowledge of or possession of documents relating to the administration of an estate shall make the records or other pertinent documents available to an accountant referred to in subsection (1) and shall cooperate fully with the accountant.

(4) An accountant referred to in subsection (1) shall at the conclusion of their investigation file a report respecting their investigation with the court and send a copy of the report by ordinary mail to a personal representative of an estate.

(5) The court may require an accountant referred to in subsection (1) to appear at a hearing and give any further explanations the court may require to pass the accounts of an estate.

61 (1) The taxation of a solicitor’s bill of costs in relation to an estate of a deceased person pursuant to Section 91 of the Act may be conducted prior to or upon an application for passing the accounts of an estate.

(2) If the taxation of a solicitor’s bill of costs is dealt with separately from passing the accounts of an estate, the registrar shall be provided, not less than 10 days before the taxation, with a notice of taxation in Form 44 and a copy of each bill of costs to be taxed, together with

(a) proof that the personal representative and the persons listed in clauses 52(1)(a) through (h) were served with a copy of each bill of costs and the notice of taxation at least 30 days before the taxation; or

(b) written consents to the solicitor’s bill of costs from the personal representative and the persons listed in clauses 52(1)(a) through (h).

(4) A decision of a registrar in a taxation of a solicitor’s bill of costs may be appealed to a judge.

62 (1) A commission paid to a personal representative of an estate pursuant to Section 76 of the Act is for all services performed by the personal representative to complete the administration of the estate including distribution of the estate.

(2) A compensation agreement reached by a testator and a proposed personal representative is not binding on a court or the beneficiaries of the testator unless it is incorporated in the testator’s will.

(3) In deciding the amount of the commission to allow to a personal representative pursuant to Section 76 of the Act, a court may consider the following:

(e) the success resulting from the personal representative’s administration of the estate.

63 (1) Subject to Section 71, a person interested in an estate is, for the purposes of this Part,

(2) A court may order a group of persons with identical interests to be a class of persons interested in an estate.

64 (1) An application may be made to a court under this Part respecting any contentious matter.

(2) For the purposes of this Part, a “respondent” includes but is not limited to any person interested in an estate.

(3) A person interested in an estate may commence an application under this Part by filing with a court and serving on the respondents

(b) an affidavit in Form 46 containing a list of persons interested in the estate and swearing to the facts on which the application is based.

(4) If a personal representative is not joined as an applicant in an application under this Part, the personal representative shall be shown as a respondent in documents filed with the court.

65 (1) A copy of an application filed with a court pursuant to subsection 64(3) shall be served on a respondent not less than 30 days before the hearing.

(2) Despite subsection (1) a court may set a date for a hearing and permit an application to be served less than 30 days before the hearing if, in the opinion of the court, the circumstances warrant it.

(3) If a person interested in the estate is a missing person, an applicant shall serve the Public Trustee with a copy of an application filed pursuant to subsection 64(3).

(4) If the identity or address of a person interested in the estate is unascertainable, an applicant shall serve the Public Trustee with a copy of an application filed pursuant to subsection 64(3).

66 (1) A person who is served with an application pursuant to Section 65 or 71 and who wishes to object to the application shall

(a) file a notice of objection in Form 47 with the court giving reasons for their objection; and

(b) serve a copy of the notice of objection filed pursuant to clause (a) on the applicant, not less than 10 days before the hearing.

(2) If a person does not file and serve a notice of objection in accordance with subsection (1), the person

(b) may only make representations at the scheduled hearing with the permission of the court.

(3) Despite subsection (1), a court may permit the notice of objection to be filed and served less than 10 days before the hearing if, in the opinion of the court, the circumstances warrant it.

67 Without limiting the powers of the court, the registrar, on hearing an application under this Part, may

(d) set the time or times within which matters or proceedings respecting the estate shall be completed;

(e) grant any relief to which the applicant is entitled because of a breach of trust, wilful default or other misconduct of the respondent;

(f) direct that notice of the court’s decision or order be given to a particular person;

(g) dispense with service of notice on any person if, in the opinion of the court, service is impractical;

(h) order that any money in the hands of a personal representative be paid into any chartered bank to the credit of the estate and not withdrawn without a court order;

(j) order that costs be paid from the estate or by a person who is a party to the application;

68 (1) If an applicant applies for an order requiring a person to produce a will for a grant or to renounce executorship of a will, a court may order the person to appear before the court to

(d) explain why administration with the will annexed should not be granted to the applicant or another person who has a prior or equal right to administer the estate and who is willing to act as an administrator;

(f) give any information that the person has that is relevant to discovering the location of the will if it is not in the possession or control of the person.

(2) Despite subsection (1), a court may permit a person to prepare and submit affidavit evidence rather than attending before the court if, in the opinion of the court, the circumstances warrant it.

(3) An applicant shall not apply for an order requiring a personal representative of an estate to accept or refuse executorship of a will until at least 20 days after the date of the death of the testator.

(4) Despite subsection (3), an applicant may apply for an order requiring a personal representative of an estate to accept or refuse executorship of a will prior to the time referred to in subsection (3) if, in the opinion of the court, the circumstances warrant it.

(5) Upon being satisfied that a will may be in the custody of a person, a court may make an ex parte order in Form 48 for the production of the will.

69 (1) If an original will is lost or destroyed, the validity and content of the will shall be proved in accordance with Section 31 of the Act upon an application for proof in solemn form, unless the court otherwise orders.

(2) An application under subsection (1) may proceed by affidavit evidence without appearance where all persons who have an interest in the estate consent in writing to the proof.

70 (1) Each person who is or claims to be entitled to administer an estate under an unrevoked grant shall be made a party to an application for revocation of the grant.

(2) A court may direct that any person interested in an estate be made a party to the proceeding for revocation of a grant.

(a) if the applicant has possession or control of the grant, the applicant shall deliver the grant to the registrar within 7 days after the application has been filed with the court; or

(b) if a party to the application other than the applicant has possession or control of the grant, the party shall deliver the grant to the registrar within 7 days after the party has been served with the application,

and the person to whom the grant was issued shall not act under it without leave of the court.

(4) If a person fails to comply with clause (3)(a) or (b), the registrar may issue an order in Form 49 requiring the person to deliver the grant to the registrar.

(5) A person against whom an order has been issued under subsection (4), shall not act under the grant without leave of the court.

(6) If an application for revocation of a grant is not contested or opposed, a court may make an order based on the documents filed without requiring anything more.

71 (1) Subject to subsection (2), an application for proof of a will in solemn form pursuant to Section 31 of the Act shall be commenced by filing with the court a notice of application in Form 45 and an affidavit in Form 46 setting out the reasons for questioning the validity of the will and describing the names, ages and places of residence of the beneficiaries and persons entitled to share in the distribution of the estate by reason of the Intestate Succession Act.

(2) In accordance with subsection 31(2) of the Act, if an application for proof in solemn form of a will is made after 6 months from the date of the grant, the applicant shall explain the reasons for commencing the application at that time and shall acknowledge that the application is limited to the portion of the property of the estate remaining undistributed as at the date of commencement of the application.

(3) All persons known to have an interest in upholding or disputing the validity of the will shall be served with a copy of the application referred to in subsection (1) in accordance with Section 65 and shall have the right to be joined as parties.

(4) Upon filing the documents referred to in subsection (1), the applicant shall advertise the notice of application for proof in solemn form in 3 consecutive issues of the Royal Gazette.

(5) If an application for proof of a will in solemn form has been filed pursuant to Section 31 of the Act, a personal representative who has been issued a grant for the estate shall not distribute any of the property of the estate unless

(b) all persons interested in the estate consent in writing to the distribution and all the consents are filed with the court.

(6) Subject to subsection (5), if an application for proof of a will in solemn form is filed pursuant to Section 31 of the Act, a personal representative who has been issued a grant shall not exercise any of the powers of a personal representative during the application for proof of the will in solemn form without the consent of the court.

(7) If a court file has been opened for an estate, the registrar shall record all documents referred to in subsection (1) in that file.

(8) If there is no court file for an estate, all of documents referred to in subsection (1) are deemed to be originating documents and the registrar shall open a court file.

(9) If an application for proof of a will in solemn form is not contested, the court may make an order based on the documents filed without requiring anything more.

(10) If an application for proof of a will in solemn form is made by a person other than a personal representative named in the will, the personal representative may

(11) If a personal representative of an estate applies pursuant to clause (10)(b) for an order that the application for proof of a will in solemn form is frivolous or vexatious, the personal representative shall file an affidavit explaining their reasons for seeking the order.

(12) If an application for proof of a will in solemn form is contested, the person contesting the application shall file a notice of objection in accordance with Section 66.

72 (1) A registrar may act as clerk of the court where a judge is hearing a matter under the Act.

(2) If a registrar acts as clerk pursuant to subsection (1), the registrar shall assist the judge at any sitting of the court and be subject to the order of the judge, and all papers in the registrar’s possession shall be available for the use of the judge.

(3) When acting as a clerk, a registrar shall inform the judge of any proceeding or other business awaiting the judge’s action, and if the judge does not reside in the probate district the registrar shall, whenever the judge holds a sitting of the court, prepare a docket of the business to be disposed of at the sitting and may attend at the sitting with the papers relating to the business.

(4) A registrar acting as clerk pursuant to subsection (1) shall be responsible for recording the evidence and documents filed with the court.

73 (1) A person interested in an estate may make an application to a court in accordance with Section 64 for an order appointing one or more appraisers to estimate the value of any or all of the assets of the estate.

(2) Where an application is made pursuant to subsection (1), the affidavit shall contain

(d) the method for determining the value of any or all of the assets to be appraised where more than one appraiser is to be appointed.

(3) The costs of an appraisal under this Section shall be paid from the estate unless the court otherwise directs.

74 (1) During the proceeding of any contentious matter under this Part, the parties may agree to adjourn the proceeding and refer any or all matters in dispute to mediation.

(2) If a matter is referred to mediation pursuant to subsection (1), unless otherwise agreed by the parties, the procedure for conducting the mediation shall be as set out in Schedule A.

(3) If a party withdraws from mediation or where mediation is concluded without agreement being reached, the matter in dispute may be recommenced in the court by the parties, or one of them, at a time to be set by the court.

(4) Mediators to whom matters are referred pursuant to subsection (1) shall conduct themselves in a manner that is consistent with the Arbitration and Mediation Institute of Canada’s approved Code of Conduct including, but not limited to, not acting as a representative or counsel of a party to the mediation.

75 (1) An appeal pursuant to Section 93 of the Act from a decision or order of a registrar shall be commenced by any party aggrieved by the order or decision by

(c) serving 1 copy of the notice of appeal on the personal representative, if the personal representative is not the appellant or the respondent,

(2) A notice of appeal from a decision or order of a registrar shall be in Form 50 and shall be accompanied by a copy of the order or decision under appeal.

(3) Proof of service pursuant to subsection (1) shall be filed with the court not later than 7 days after the last day for service of the notice of appeal.

(4) Upon receipt of a notice of appeal, the registrar shall schedule a date and time for the hearing of the appeal and enter the date and time for the hearing on the notice of appeal.

(5) The judge may direct what material may be filed for the hearing of an appeal and may request clarification of the case from the registrar.

1 (1) The goal of mediation is to reach an agreed-upon settlement and, therefore, all persons with the appropriate authority to agree to the settlement terms and conditions should be present at or available to participate in the mediation.

(2) Other persons may participate in the mediation upon agreement by the parties.

2 A mediator may be chosen from the Civil Roster of Mediators or the parties may choose their own mediator.

3 (1) Each party shall disclose whatever information and documents that the parties agree are necessary for them to reach an agreement.

(2) All information and documents shall be exchanged between the parties and delivered to the mediator at least 7 days before the first mediation session.

4 (1) Each party shall prepare a brief summary statement, not to exceed 3 pages, of the issues in dispute and the party’s positions with respect to those issues.

(2) A copy of the summary statement shall be delivered to every other designated party and the mediator not less than 3 days before the first mediation session.

(3) The mediator may meet with each party separately prior to a mediation session to clarify the issues and procedures.

5 (1) The mediator may meet with any party privately during a mediation session if the mediator considers that it will assist the process.

(2) Each party shall participate in good faith in the mediation process including avoiding any unnecessary delays and submitting all relevant information.

6 A party may be represented at a mediation session by counsel or another representative and, where so represented, may request the opportunity to meet privately with counsel or that representative at any time during the mediation.

9 Unless it is necessary for a party to initiate or continue arbitral or judicial proceedings to preserve the party’s rights, no party shall, during the mediation process, initiate or continue any arbitral or judicial proceeding in respect of any matter in the dispute that is the subject-matter of the mediation.

11 (1) When the parties reach an agreement, the mediator shall set out the agreement in writing in a report that shall be reviewed by the parties.

(2) Where a party is unrepresented, the mediator may suggest that the party seek independent legal advice before a settlement agreement is signed.

12 No communications that occur during a mediation process are admissible in any legal proceeding and a mediator is neither competent nor compellable in any legal proceeding to disclose any admission or communication made to the mediator in his or her capacity as a mediator.

13 In all respects, mediation is deemed to be a “without prejudice” proceeding carried on in the course of settlement negotiations.

14 The costs of a mediation process shall be borne by the parties to it, as agreed to between or among them.