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purports to deal with the deceased’s estate. In addition, it is advisable for the
prospective executor or administrator to review the contents of any electronic
storage devices owned by the deceased, including flash drives, CDs,
DVDs and external hard drives. It may also be prudent to look at the files
on the deceased’s cell phone and digital camera to determine if any of the
files contain testamentary content.
If the executor finds a document that, on its face, deals in some way with
the deceased’s assets, and it is clear that the deceased was in some way
involved in making it, the executor should bring the document to the attention
of the court.
If there is a will under which the prospective executor is granted authority
to act, the executor can bring an application for a determination under
s. 58 by way of a notice of application in the probate action.
If there is no will under which the prospective executor or administrator
can act, or if the prospective executor or administrator’s only authority is
granted through the document, it is better to bring the application for a
determination under s. 58 by way of a petition.
In either case, the prospective executor or administrator should ensure
that anyone who is named as an executor or beneficiary in the deceased’s
previous will or the document, as well as anyone who would take a portion
of the estate under intestacy, has received notice of the application.
What about costs? In the vast majority of s. 58 cases, the court has
ordered either that the costs of the hearing be paid to the parties out of the
estate on a full-indemnity basis or that the parties come to an agreement on
costs. The rationale for this is that the deceased, by making their testamentary
wishes unclear, created the need for a court hearing, and it is their
estate that should pay the costs of that hearing. A similar rationale applied
to wills construction cases. However, when the applicant brings the matter
to the court with no justification for doing so, that applicant may be
required to pay the costs of the hearing.
British Columbia (Public Guardian and Trustee) v. Sheaffer18 is an example
of the latter. In that case, the applicant brought an application under s. 58
for the recognition of an unsigned will document that the deceased had
given instructions for before his death. The deceased died in 2011, several
years before the qualifying date of March 31, 2014 in s. 186 of WESA. Nonetheless,
the applicant proceeded to bring a challenge under s. 15 of the
Canadian Charter of Rights and Freedoms, alleging that the date set out in
s. 186 was arbitrary and unfair. Unsurprisingly, the court did not find merit
in these submissions and declined to grant the applicant’s order. The court
further found that the applicant had forced all parties into litigation for his