IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
Bray Estate, |
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2008 BCSC 205 |
Date: 20080116
Docket: 14807
Registry: Smithers
Re the Estate of Thomas Henry Bray, Deceased
Before: The Honourable Mr. Justice Groberman
Oral Reasons for Judgment
In Chambers
January 16, 2008
| Counsel for Applicant: |
G.E. Greene |
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Date and Place of Hearing: |
January 15, 2008 |
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[1] THE COURT: This is an application for probate of the will of the late Thomas Henry Bray. The applicant, Allen Thomas Bray, filed a requisition and affidavit of executor in Form 69, as required by Rule 61(3).
[2] The Deputy District Registrar (who was exercising the functions of a registrar, and who will be referred to in this judgment for convenience simply as the Registrar) considered the application and noted a number of deficiencies and errors. Relying on Rule 61(5), she refused the application.
[3] Rule 61(5) reads as follows:
The registrar may approve the application and mark the documents as approved, but if the registrar refuses to approve the application, the registrar shall note on the documents his or her reasons for refusing approval.
[4] While the Rule appears to require the registrar to endorse the reasons for refusal on the documents themselves, the practice employed by the Registrar in this case – which I understand is the usual current practice throughout British Columbia – was to list the reasons for refusal on a separate piece of paper.
[5] Typically, when an application is refused by a registrar, the applicant remedies the identified deficiencies and resubmits the application. Rule 61(6), however, does allow an applicant to set the application down for hearing by the court after a registrar has refused approval, and the applicant has done so in this case. The applicant says that the Registrar's reasons for refusal lack substance and that the court should grant probate without any change to the application.
[6] At the outset, I note that an application under Rule 61(6) is not, strictly speaking, an appeal. In Re Bradford Estate (1990), 40 E.T.R. 50, [1990] B.C.J. No. 2623, Master Kirkpatrick, as she then was, analogised the function of a registrar under Rule 61(5) to the function of a registrar in approving a desk order. The registrar's rejection does not affect in any way the court's ability to subsequently grant the relief sought, nor is it always necessary for the applicant under Rule 61(6) to show error on the part of the registrar. On the other hand, where, as here, it is suggested that the Registrar erred in principle in rejecting the application, a Rule 61(6) application takes on some of the appearances of an appeal.
[7] Before turning to the individual deficiencies noted by the Registrar, I will summarize what I understand to be the law with respect to a registrar's function under Rule 61(5). The leading authority is the decision that I have just referred to, that of Master Kirkpatrick in Re Bradford Estate. While that decision is not, strictly speaking, binding on me, being a decision of a Master, I am satisfied both that it is well-reasoned and that it has been repeatedly followed by this court. I propose to follow it.
[8] In that case, the registrar refused probate because she did not consider the Statement of Assets, Liabilities, and Distribution to be complete. She considered that it was confusing in that, in addition to the assets of the estate, it listed certain other assets of the deceased that had allegedly been transferred to himself and a beneficiary as joint tenants in the days prior to his death. It expressly stated that those assets did not form part of the estate.
[9] The registrar considered the probate fees should have been paid in respect of the allegedly transferred assets. The applicant argued that the registrar was not entitled to look behind the material filed in support of the application and was only entitled to charge probate fees "calculated on the values deposed to, by or on behalf of the personal representative”, citing the then-current language of Appendix C of the Rules of Court.
[10] The court agreed, in part, with this interpretation of the rules, stating:
It seems to me that the legislative intent of item 12 is clear. It requires the calculation of probate filing fees on the basis of the values deposed to ... There is no authority under item 12 of Appendix C to require the personal representative to provide further information ... The applicant says that it is not the task of the registry to detect an incomplete or fraudulent disclosure. The registry's administrative authority, the applicant says, "...is confined to requesting clarification or correction of facts in circumstances where, based on all the information before it, there is a patent error of fact in the affidavit material."
With respect, I do not agree that the registrar's function is so limited. R. 61 governs the administration of non-contentious estates. The rule is replete with examples of the registrar's power to require the filing of further affidavits to explain deficiencies in the material filed in support of the application. See, for example, R. 61(3), (7), (10), (16), (17), and (19). The power reposed in the registrar under R. 61 suggests that the task of the registrar goes well beyond mere examination of the documents. It is not a rubber stamp procedure.
The applicant submits that "the probate registry does not take any steps, and is not equipped, to independently verify the matters deposed." That is so. But the examination of the documents filed commonly discloses inconsistencies, errors, and obvious omissions of disclosure on the face of the documents filed. This no doubt accounts for the high rate of rejection in the probate registry, which, in Vancouver, is approximately 85 per cent. Clearly, the registrar does not simply accept the material as true. If that were so, there would not exist an 85 per cent rejection rate. Indeed, there would be no need for a registrar. The documents would be accepted on their face value, filed, and the amount of probate filing fees declared payable by the applicant paid.
[11] Re Bradford Estate, it seems to me, stands for the proposition that a registrar may refuse to grant probate where the filed material raises, on its face, questions in the registrar's mind as to whether statutory requirements have been met. The questions raised need not be restricted to the form of the documents.
[12] In Re Nelson Estate (1991), 31 E.T.R. (2d) 230, [1999] B.C.J. No. 3022, at para. 17, Parrett J. interpreted Re Bradford Estate as establishing that:
[T]the power given to the Registrar with respect to the administration of non-contentious estates by Rule 61 goes well beyond the mere examination of documents, and is not simply a clerical function.
[13] In Re Bradford Estate, however, Master Kirkpatrick also established that the registrar's role is not adjudicative or investigative. Where the documents that are filed do not themselves raise issues or questions, the registrar does not have authority to demand additional information, except where such demand is specifically contemplated by the Rules.
[14] In summary, a registrar is entitled to reject an application under Rule 61(3) or require further information where the application is incomplete or ambiguous, where it contains patent errors, or where the information provided is, on its face, so curious as to demand further explanation. On the other hand, a registrar is not entitled to set her or his own requirements for an application, in effect, adding additional pre-requisites to the granting of probate beyond those statutorily authorized. In short, while the Registrar's function was not purely clerical, neither was it legislative.
[15] I will deal with each of the Registrar's reasons for refusal in this case. In each case, I will begin by quoting the point-form reason furnished by the Registrar.
[16] The first reads as follows:
- No need for an order when requesting letters probate – only for administration;
I do not understand the Registrar to put this forward as a reason for rejection per se. Rather, it is merely an attempt to ensure that counsel understands that grants of probate are endorsed on the documents rather than given as free-standing orders. I need not deal with this part of the reasons further.
[17] The second note of the Registrar is:
- Affidavit of executor
no need to exhibit death certificate of the deceased (it’s not wrong, just not required)
Again, the Registrar is putting forward information to help counsel with future applications, rather than providing a reason for rejection, and I need not deal with this further.
[18] The balance of the Registrar's comments deal with the Statement of Assets, Liabilities and Distribution annexed to the Affidavit of Executor. The Statement is part of the prescribed form.
[19] With respect to Part I of the Statement dealing with real property, the applicant listed “Lot 3, Plan 6183, District Lot 343, Range 5, Coast Range 5, Land District 1006, Lund Road, Houston, BC.” The value is listed as $97,100. The Registrar's comments are brief and are as follows:
- Need to include whose name the property is in & how the value was arrived at (i.e. market value, BC Assessment, etc.)
[20] The prescribed form, Form 69, merely requires a listing of each real property interest and the value. It does not suggest that the method of valuation need be provided. While it may be that a registrar is entitled to make further inquiries where the value listed is completely out of keeping with the nature of the asset listed – for example, if a fee simple were valued at $100 – I see no basis on which a registrar is entitled, as a matter of routine, to simply add to the requirements of the form prescribed by the Rules by requiring the applicant to set out the basis upon which the valuation has been reached. The form does not provide for the applicant to set out the method by which he or she arrives at a value, and a registrar has no authority to embark upon a general investigation of that issue in the absence of something on the form that creates confusion.
[21] While I acknowledge that the language of Appendix C has changed since Re Bradford and requires a payment based on gross value of the estate rather than “on the values deposed to”, I see nothing in the Appendix or other enactment that gives a registrar powers to enter upon an inquiry where the value deposed to is, in broad terms, in keeping with the general character of the property listed. I note, as well, that the Probate Fee Act, S.B.C. 1999, c. 4, defines the expression "value of the estate" as meaning “the gross value, as deposed to in a Statement of Assets, Liabilities and Distribution exhibited to the affidavit leading to a grant ….” This language is very similar to the language that Master Kirkpatrick considered in Re Bradford.
[22] The Registrar did not, in her reasons for rejection, suggest that the amount listed as "value at death" was out of keeping with the nature of the asset, nor do I have a basis on which I could make a finding to that effect. In the result, the Registrar's demand that the method of valuation be disclosed amounted to a supplementing of the statutory requirements and was beyond the Registrar's jurisdiction. I find that the applicant was not required to set out the method of valuation.
[23] In saying this, I recognize that it leaves the system vulnerable to fraudulent, or at least deliberately low, declarations of value. As Master Kirkpatrick pointed out in Re Bradford, however, the decision to cast the system in its current form appears to have been a deliberate one, and it is open for the Rules to be changed to require applicants to provide some justification for values listed in the form, if that is deemed desirable. It is not for a registrar to unilaterally add that requirement.
[24] With respect to the Registrar's other requirement in respect of the real property – that the name of the registered owner of the property be provided – I again see no statutory requirement for this information. I suspect that what the Registrar was really looking for was the nature of the estate's interest in the real property: Was it a fee simple, an undivided part interest in the fee simple, a leasehold, a mortgage, or some other real property interest? Was the interest both legal and equitable, or only one or the other?
[25] I have been advised by counsel that the interest listed is, in fact, ownership of the fee simple, though counsel tells me that the property remains registered as a joint tenancy between the deceased and his wife, who pre-deceased him. While it would have been better if the Statement had expressly referred to that property interest, I am prepared to accept the Statement, supplemented by counsel's representation. It is a natural assumption, in any event, that the listing of property with no qualification as to the nature of the interest is intended to describe the fee simple interest. In saying this, and in accepting counsel’s representation, I do not mean to imply that the Registrar would have been in error in seeking additional information as to the nature of the listed interest.
[26] The Registrar's next comments concern Part II of the statement; the part dealing with personal property. The first personal property listed is 1997 Chevrolet pickup. The registrar noted:
- Need VIN for pickup & whose name it’s registered in
[27] With respect to the name in which the truck is registered, I accept that in the absence of a qualification in the listing, it can be assumed that the deceased was the sole registered owner of the property, or at least sole owner of the beneficial interest in the property. It was not necessary, therefore, to provide the name.
[28] On the other hand, I agree with the Registrar that in respect of a vehicle, it is appropriate to demand that the property be described more specifically than it has been in this document. For instance, what model and what size of pickup is this? The requirement to describe the truck specifically with, for instance, a Vehicle Identification Number, is, in my view, reasonable. I am of the opinion that the applicant can be required to furnish that information and agree with the Registrar that the generic description provided by the applicant was inadequate. Whether or not this would lead to me rejecting the application for probate is, for reasons that I will further elaborate on, not of any moment, as I do consider that there is a serious defect in the material provided that does necessitate the rejection of the application.
[29] The next issue concerns a bank account. The description is "money on deposit at the Royal Bank, Houston, BC, estimate." The registrar's comments are:
- Need bank account # & whose name the account is in
and
- Need to explain why it’s an estimated amount and not an exact amount as of d.o.d. [which I take to mean date of death.]
[30] The issue here is parallel to that of the truck. In the absence of a name of the holder of the account, the natural assumption is that the deceased held the full beneficial interest in the account. I understand from counsel that that is the case here. I would, therefore, not require any amendment to the form in respect of that aspect of the Registrar's concerns.
[31] I do agree with the Registrar that the property ought to have been particularized, if possible, by setting out the account number, and the difficulty is compounded by the use of the word "estimate" in respect of the value of the bank account. Ordinarily, an applicant should be able to provide the account number and the precise amount understood to be in the account. I understand from counsel that in this case the applicant does not have that information and the bank has refused to provide it. In these circumstances, it seems to me that it would have been better if that information had been set out on the form, so that the Registrar could have determined whether any further inquiries were to be demanded, or whether a further description of the account was necessary.
[32] Again, given that I am, for other reasons, of the view that there are deficiencies in the statement, I need not determine whether from my standpoint the information provided with respect to the account satisfies me that the statement is adequate. As the document will need to be revised, it will be simple for the applicant to disclose as much further information as he has with respect to the account – for example, whether it is a savings or a chequing account, and setting out any reasons for his inability to provide further information.
[33] A similar issue arises with respect to the listing of the safety deposit box. The applicant describes the location as "Royal Bank, Houston, BC," but provides no further particulars. The Registrar's comments are:
- Safety Deposit Box – if it’s unknown, how can you say its at the Royal Bank?
This query seems to me to be well within the Registrar's authority, and if the answer is simply that the applicant does not have the box number and the bank refuses to provide it, then that information could have been included in the form or given in response to the registrar's query. Again, as I have another concern with the form, I need not decide whether or not this deficiency is such that I would reject the application.
[34] The registrar's final comments are with respect to Part IV of the form, “Distribution of the Estate”. The applicant lists only Donald William Bray as entitled to specific property, being the real property. That seems to be in conformity with the will. It then says: “Residue, if any, to be divided equally among the following children per capital.” It lists the deceased's five sons and daughters, other than Donald William Bray. The registrar's comments are as follows:
- Isn’t Donald entitled to the property and 1/6th the residue? You have him only getting the property
- Need to include relationship of other beneficiaries
- Should be “per capita” not “capital”
[35] The last two comments are technical in nature. While the Registrar is correct in stating that "per capital" should have been "per capita," I am not certain that the obvious typographical error would have been sufficient reason on its own to reject the application. Again, however, I believe the Registrar was simply being helpful in pointing out an error that should be corrected before resubmission, rather than indicating that the document was rejected for that reason.
[36] A similar comment applies with respect to the use of the phrase "the following children" to describe the residual beneficiaries. The phrase is not an unambiguous description of the relationship. "The following children" may mean either “the following sons and daughters of the deceased” or “the following persons who are not yet adults.” While the will itself assists in alleviating the ambiguity, this should be corrected when the document is resubmitted. Again, I do not think that this deficiency would have been sufficient reason to reject the application.
[37] The sole fatal difficulty with respect to the application, in my view, is the patent error in listing the beneficiaries. It is clear on the face of the will that the residue was to go to Donald William Bray, as well as the five other children of the deceased listed in the statement. The error is a potentially serious one, indicating that the applicant does not understand the clear terms of the will. The Registrar, in my view, had no choice but to reject the application for that reason. I, too, reject the application for that reason.
[38] In the result, while I believe that the Registrar strayed beyond her authority in some respects in rejecting the application, I am unable to grant probate based on it. I confirm that the application is rejected pending the provision of a corrected Statement of Assets, Liabilities, and Distribution.
The Honourable Mr. Justice H. M. Groberman