|This is an unofficial archived version of The Court of Queen's Bench Surrogate Practice Act|
as enacted by SM 1987-88, c. 9 on July 17, 1987.
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R.S.M. 1987, c. C290
The Court of Queen's Bench Surrogate Practice Act
|Table of Contents|
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
In this Act
"administration" includes all letters of administration of property of deceased persons, whether with or without the will annexed, and whether granted for general, special or limited purposes; ("administration")
"common form business" means the business of obtaining probate or administration where there is no contention as to the right thereto including the passing of probate and administration through the court when any contention as to the right thereto has been determined and all business of a non contentious nature to be taken in the court in matters of testacy and intestacy not being the lodging of caveats against the grant of probate or administration; (" procédure ordinaire")
"matters and causes testamentary" includes the granting of probate of wills and letters of administration of estates of deceased persons having property in the province, and the revocation thereof, and all matters and causes relating thereto or arising therefrom; ("affaires et causes testamentaires")
"prescribed fees" means the fees prescribed under The Law Fees Act; ("frais prescrits")
"will" includes all papers and documents of which probate may be granted. ("testament")
Except where the context otherwise requires and subject to section 1, words and expressions used in this Act have the same meaning as they have in The Queen's Bench Act.
The office of the deputy registrar for each judicial centre shall be depositories for all wills of living persons given to him for safekeeping and the deputy registrar shall receive and keep the same under such regulations as are prescribed by the rules.
The deputy registrar for each judicial centre shall file and preserve all original wills of which probate or letters of administration with will annexed are granted by the court from the judicial centre, and all other papers used in any matter in the court at the judicial centre relating to matters and causes testamentary in accordance with such regulations as are prescribed by the rules.
Within the first 7 days of each month, or more often if required by the rules, the deputy-registrar for each judicial centre shall transmit to the registrar
(a) a list of grants of probate and administration made by the court from the judicial centre during the previous month and not included in any previous lists: and
(b) a list of every revocation of grant of probate or administration made by the court from the judical centre during the previous month and not included in any previous list;
and the lists shall be in such form and contain such particulars as are prescribed by the rules.
No person appointed as an officer of the court shall, for fee or reward, draw or advise upon any will, any paper or document connected with duties under this Act, or collect a fee for any service performed under this Act or under the rules for which a fee is not expressly allowed thereby.
All jurisdiction and authority in relation to matters and causes testamentary is hereby vested in the court.
Administration shall not be granted to a person who is not habitually resident within Manitoba.
Probate shall not be granted to a person not habitually resident within Canada unless he gives like security as is required from an administrator, but the security may, in the discretion of the court, under special circumstances, be dispensed with or reduced in amount.
This section does not apply to resealing of grants of probate or administration.
Grants of probate or administration may be made by the court at any judicial centre.
Where the person, or one of the persons, entitled to apply for probate or administration is a judge, he may make application therefor and any subsequent application in connection with the estate, but he shall not in respect of the applications or in any matter arising out of the administration of the estate of the deceased, act as a judge.
Every grant of probate or administration granted from a judicial centre has the same force and effect as a grant granted from any other judicial centre and has effect throughout the province.
Whether an action or proceeding regarding the estate of a deceased person is pending before it or not, the court may, in a summary way, order a person to produce and bring before the court, or deposit in the court office or otherwise as the court directs, any paper or document made or signed by the deceased and being or purporting to be testamentary in nature, any document or evidence of title relating to the securities contracts or assets of the deceased, or any personal property of the deceased that is shown to its satisfaction to be in the possession or under the control of the person.
Where it is not shown that a paper, document or personal property mentioned in subsection (1) is in the possession or under the control of a person, but it appears that there are reasonable grounds for believing that the person has knowledge thereof, the court may, whether an action or proceeding regarding the estate of the deceased person is pending before it or not, direct the person to attend for the purpose of being examined in open court or before the registrar or a deputy registrar or before such other person as the court directs or upon interrogatories and, if so ordered to produce and bring the paper, document or property before the court or to deposit it with the deputy registrar.
Where a person fails to comply with an order or direction made under subsection (1) or (2), the person is subject to the like process and penalty that a person who is a party to an action in the court would be subject to upon failing to comply with a similar order or direction of the court in an action or proceeding, and the costs of the proceedings are in the discretion of the court.
The administration of an estate of a deceased person may be limited to either the personal property of the deceased or a part thereof, or the real property or a part thereof, or otherwise as the court thinks fit.
Where a trust company is named in a will as the sole executor, the court may grant probate of the will to the trust company alone.
Where a trust company is named in a will as one of several executors, the court may grant probate of the will either to the company jointly with the other persons so named or, if the other persons so named as executors renounce their right to probate, to the company alone.
Where a probate of a will has been granted as provided in subsection (1) or (2) the trust company may thereupon act as an executor.
The court may grant administration of the estate of a deceased person to a trust company either solely or jointly with other persons and the trust company may thereupon act as an administrator of the estate.
Where, for the purpose of obtaining administration of probate, or for the purpose of administering an estate, the court requires affidavits or security to be given by a trust company, or requires any other act or thing to be done by a trust company, an officer authorized for the purpose by the trust company may, on behalf of the trust company, swear the affidavit, give the security, or do the act or thing, and the acts of the officer so authorized are binding upon the trust company.
Where, by reason of special circumstances, it appears to the court to be expedient to grant administration to some person other than the person who, if this Act had not been passed, would be entitled to a grant, the court, in its discretion, may grant administration to that person upon the giving of such security, if any, as the court directs and the administration so granted may be limited as the court thinks fit.
Where application is made for administration by a person not entitled thereto as next of kin of the deceased, the court, unless in special circumstances it dispenses therewith, shall, by order, require the next of kin and others having or claiming to have an interest in the property of the deceased, if they are within the province, to show cause why the administration should not be granted to the person applying therefor, and service of the order shall be made in the manner prescribed by the rules or as the court directs.
Where the next of kin habitually residing in Manitoba and entitled to administer the estate of a deceased person, is absent from Manitoba, the court may grant a temporary administration to such other person as the court thinks fit, for a limited time, or subject to revocation upon the return of the next of kin to Manitoba.
An administrator appointed under subsection (1) shall give such security as the court directs, and has all the rights and powers of a general administrator, but is subject to the immediate control of the court.
Pending a suit touching the validity of the will of a deceased person, or for obtaining, recalling, or revoking, any probate or administration, the court may appoint an administrator of the estate of the deceased person and the administrator so appointed
(a) has all the rights and powers of a general administrator including the payment of the creditors, but does not have the right of otherwise distributing the estate: and
(b) is subject to the immediate control of the court and acts under its direction;
and the court may direct that he receive a reasonable remuneration out of the estate and may fix that remuneration.
Where a person renounces probate of a will of which he is named an executor, his rights in respect of the executorship and any trusteeship under the will shall wholly cease except insofar as the renunciation expressly reserves the trusteeship, and the representation of the testator and the administration of the property of the testator shall, without any further renunciation, be granted in like manner as if the person renouncing had not been named an executor or trustee.
The court may summon a person named an executor of a will to prove the will and to do every other thing necessary or expedient concerning it.
Where an executor survives the testator, but dies without having taken probate, or where an executor is summoned to prove a will, and refuses to do so or does not appear, the rights, of the executor in respect of the executorship and any trusteeship under the will, wholly cease, and the representation of the testator, and the administration of the property of the testator, shall, without any further renunciation, be granted in like manner as if the person so dying or refusing had not been named an executor or trustee.
Where an infant is sole executor, administration with the will annexed shall be granted to the guardian of the infant, or to such other person as the court appoints, until the infant attains the age of majority, at which time, and not before, probate of the will may be granted to the infant.
On every application for probate or administration, the place of abode of the deceased at the time of death shall be made to appear by affidavit; and where the deceased had no fixed place of abode in or was habitually resident outside the province at the time of his death, it shall be made to appear by affidavit that he died leaving property within the province or leaving no personal or real estate in the province, as the circumstances are, and thereupon, and upon proof of the will, or, in case of intestacy, upon proof that the deceased died intestate, and upon payment of the prescribed fees, the letters probate or letters of administration applied for, may be granted under the seal of the court.
Upon application for probate or administration with will annexed of a will other than a holograph will, evidence shall be given proving to the satisfaction of the judge the validity and proper execution of the will, including evidence that, at the time of the execution, the testator
(a) appeared to be of sound mind, memory and understanding; and
(b) was of the age of majority or otherwise authorized under the law to make a will.
Subject to subsection (4), the evidence given under subsection (2) shall include that of at least one of the witnesses to a will.
Where, upon application for probate or administration with will annexed of a will other than a holograph will, it appears that the witnesses are dead or incompetent, or that their whereabouts are unknown, the judge may accept such evidence as he considers satisfactory as to the matters respecting which, under subsection (2), evidence is required to be given.
Upon application for probate or administration with will annexed of a holograph will, evidence shall be given satisfactorily to the judge
(a) as to the handwriting and signature of the testator, and that the entire will is wholly in the handwriting of the testator; and
(b) as to the validity of the will, including evidence that
(i) at the time or apparent time of the signing of the will, the testator was of the age of majority or otherwise authorized to make a will, and
(ii) at or about that time or apparent time, the testator appeared to be of sound mind, memory and understanding.
A notarial will made in the Province of Quebec may be admitted to probate without the production of the original will upon filing a notarial copy thereof, together with the proper proofs to lead to grant except than an affidavit of execution of the will is not required.
The affidavit as to the habitual residence and property of the deceased shall be conclusive for the purpose of giving the court jurisdiction and authorizing the exercise thereof and no grant of probate or administration is liable to be revoked or otherwise impeached by reason that the deceased was not habitually resident within the province or had no property therein at the time of his death; but, if it is made to appear to the court before whom an application is pending that the habitual residence of the deceased, or the situation of his property, has not been correctly stated in the affidavit, the court may stay all further proceedings therein, and may make such order as to the cost of the proceedings as it deems proper.
A person applying for a grant of probate or administration shall, before it is granted, cause to be made and delivered to the court a true and complete inventory, verified by oath, of all the property which belonged to the deceased at the time of his death.
Where, after the grant of probate or administration, property belonging to the deceased at the time of his death, and not included in the inventory, is discovered by the executor or administrator, the executor or administrator, as the case may be, shall, within 30 days thereafter, or such longer period as a judge may allow on application, make and deliver to the court an inventory, verified by oath, of the newly discovered property.
Where the application or grant is limited to a part only of the property of the deceased, it is sufficient to set forth in the inventory required under subsection (1) or (2) the property intended to be affected by the application or grant.
Subject as herein provided, and except in the case of the Public Trustee or where otherwise provided by law, every person to whom a grant of administration, including administration with will annexed, is to be made, shall give a bond to the judge to inure for the benefit of the judge for the time being with such surety, if any, as may be required by the judge conditioned for the due collecting, getting in, administering, distributing and accounting for, the property of the deceased, and the bond shall be in the form prescribed by the rules, or if none is prescribed, as the court by order directs.
The judge may accept more bonds than one so that the liability of any surety is limited.
Unless a judge directs that the amount of the bonds required in respect of any estate be reduced, the aggregate amount of the bonds shall be double the amount of the sworn value of the property of the deceased to be affected by the grant.
Where all the beneficiaries of an estate are adults capable of giving their consent, and do consent, a judge may direct
(a) that the grant of administration of the estate be made without a bond: or
(b) that the grant of the administration of the estate be made without requiring sureties to the bond.
Where the sworn value of the property of the deceased to be affected by the grant of administration is $50,000. or less, no surety is required for a bond in respect of the grant.
Where the sworn value of the property of the deceased to be affected by the grant of administration is more than $50,000. but less than $100,000., not more than one surety is required for a bond in respect of the grant.
Where a bond for a grant of administration of an estate is given by a surety company, the amount of the bond shall be for the amount of the sworn value of the property of the deceased to be affected by the grant of administration.
In lieu of a bond, the court may accept the certificate of the Minister of Finance of the deposit with him of money or securities of Canada or provincial securities, in an amount equal to the amount of the sworn value of the property of the estate, and the minister shall pay to the depositor such interest on money so deposited as the Lieutenant Governor in Council directs and, where securities are deposited, may allow the depositor to collect the interest payable thereon; and the deposit is subject to the order of the court in respect of any action on the liability of the depositor in connection with the administration of the estate.
The amount of the security may, from time to time, be reduced by the court to such amount as the court deems proper.
The court, on summary application, and on being satisfied that the condition of the bond has been broken, may order the registrar or a deputy registrar to assign the bond to a person named in the order and that person shall thereupon be entitled to sue on the bond as if it had originally been given to that person and shall recover thereon as trustee for all persons interested the full amount recoverable in respect of any breach of the condition of the bond.
The oaths to be taken and the bonds or other security to be given, by executors and administrators, and the probates and letters of administration, shall require the executor or administrator to render a just and full account of the executorship or administration when lawfully required to do so.
Where a surety for an administrator or guardian dies or becomes insolvent, or where, in the opinion of the court, the security furnished becomes inadequate or insufficient, the court may require other or additional security to be furnished, and if security is not furnished as required, may revoke the grant.
An order may be made under subsection (1) at the instance of the court or on application of any person interested in the matter.
Where a surety for an administrator or guardian desires to be discharged from his obligation or where an administrator or guardian desires to substitute other security for that furnished, the court may allow other security to be furnished in lieu of that other surety or of the security so furnished on such terms as it deems proper, and may order that on the substituted security being furnished and, if the court so directs, the accounts of the administrator or guardian being passed, the surety be discharged from all further accruing responsibility.
An application for an order under subsection (2) may be made ex parte or on such notice as the court directs.
Where an administrator has passed its final accounts or the court has dispensed therewith, if the administrator has paid into court or distributed the whole of the property of the deceased that has come into the hands of the administrator, the court may direct that the bond furnished be cancelled, or that the money or securities deposited be delivered to the depositor.
The deputy registrar shall forthwith transmit to the registrar every application for a grant of probate or administration received by him.
No will or bond shall be transmitted by a deputy registrar under section 32.
The registrar shall, with reference to each new application, examine the records of all applications received from the deputy registrars, as far as appears to be necessary to ascertain whether or not applications for probate or letters of administration in respect of the deceased have been made in more than one judicial centre, and shall communicate with the deputy registrars as the occasion requires in relation to the applications.
The registrar shall forthwith endorse on each application and sign a certificate showing that no other application appears to have been made for probate or letters of administration in respect of the deceased, or as the case may be, and the registrar shall forthwith return the application to the deputy registrar.
Unless the court by special order otherwise directs, no probate or letters of administration shall be granted till the application transmitted under section 32 has been returned to the deputy registrar with a certificate of the registrar, as required under section 35, that no other application for probate or letters of administration in respect of the deceased has been made.
Where it appears by the certificate of the registrar that application for probate or administration has been made to the court in two or more judicial centres, the deputy registrar for each judicial centre in which the applications have been made shall stay proceedings therein leaving the parties to apply to the court for directions in the matter and the court, on application, shall inquire into the matter in a summary way and adjudge and determine which application shall be proceeded with.
On an application under subsection (1), the court may order costs thereof to be paid by any of the applicants for probate or administration of the estate.
The determination of the court under subsection (1) is final and conclusive and the registrar shall, forthwith transmit a certified copy of the court's order to the deputy registrars for the judicial centres where the applications for probate or administration were made.
Caveats against the grant of probate of the will or letters of administration of the estate of a named person or deceased, or against any other proceedings in the estate, may be lodged with the registrar or a deputy registrar.
Upon a caveat being lodged with the deputy registrar, the deputy registrar shall forthwith send a copy thereof to the registrar to be entered among the caveats lodged with the registrar and, upon an application being received from a deputy registrar, the registrar shall forthwith forward to the deputy registrar notice of any caveat that has been so lodged touching the application, and the notice shall accompany or be embodied in the certificate of the registrar given under section 35.
Where proceedings are taken for proving a will in solemn form, or for revoking the probate of a will, or in any contentious cause or matter, all persons having or claiming to have an interest in the property affected by the will may be summoned to attend the proceedings and may be permitted to become parties, subject to the rules and to the discretion of the court.
An executor who is also a trustee under the will may be required to account for his trusteeship in the same manner as he is required to account in respect of the executorship.
A guardian appointed by the court may pass the accounts of his dealings with the property before the court.
The court, on passing the accounts of an executor, administrator, executor-trustee, or guardian may,
(a) enter into and make full inquiry and accounting of and concerning the whole property that the deceased or person under guardianship was or is possessed of or entitled to, and the administration and disbursement thereof, including the calling in of creditors and adjudicating upon their claims, and for that purpose may take evidence and decide all disputed matters arising in the accounting; and
(b) inquire into and adjudicate upon a complaint or claim by a person interested in the taking of the accounts, of misconduct, neglect or default, on the part of the executor, administrator, executor-trustee, or guardian, occasioning financial loss to the estate or trust fund and, on proof of the claim, may order that the executor, administrator, executor-trustee, or guardian, be charged with such amount by way of damages or otherwise as it deems just, in the same manner as if he had received the amount.
At least 14 days notice of the accounting, or such lesser notice as the court may direct, shall be given to the sureties, if any, and to all the persons interested therein and habitually resident in the province and, if there are persons interested not habitually resident in the province, such notice shall be given to them as the court directs or the court may dispense with notice to them.
Where a person interested in an estate is an infant, the notice under subsection (2) shall be served on the guardian of his estate or, if none is known, on the Public Trustee, and where a person interested is of unsound mind, the notice shall be served on his committee or, if none is known, or the person is confined to an institution as defined in The Mental Health Act, on the Public Trustee.
Where accounts submitted to the court are of an intricate or complicated character, and in the opinion of the court require expert investigation, the court may appoint an accountant or other skilled person to investigate and to assist the court in auditing the accounts and the cost thereof shall be borne as the court determines.
An executor or administrator may be required by the court to render an account of the property of the deceased on the court's own motion or on the application of a person interested in the property, a creditor of the deceased, or a surety for the due administration of the estate, and the executor or administrator shall thereupon account before the court and upon such an accounting the court may exercise its powers under section 43.
Upon or after the passing or taking of any accounts under section 43 or 44, the court may order the payment to any person of any sum of money found to be due to him, including a legacy or share of residue, or may order that an interest in land be transferred to any person found to be entitled thereto.
Where an executor, administrator, trustee under a will of which he is an executor, or a guardian, has filed in the court an account of his dealings with an estate, and the judge has approved thereof, in whole or in part, and subsequently the executor, administrator, trustee or guardian is required to pass accounts in the court, the approval, except insofar as mistake or fraud is shown, is binding upon any person who is notified of the earlier accounting or who is present or represented thereat, and upon everyone claiming under him.
Where it appears to the court that the total value of all the property of a deceased does not exceed $5,000. so far as can be reasonably ascertained, the court, without the grant of probate or administration, may order that the personal property be paid or delivered to such person as the court directs, to be disposed of by him as the court directs in
(a) paying the reasonable funeral expenses;
(b) paying the debts of the deceased; and
(c) paying over any balance in accordance with the terms of the will, if any, or to the next of kin, or if there is no next of kin or if none can be conveniently found, paying over the balance to the Minister of Finance to be credited to the Consolidated Fund;
and may order that the real property be vested in such person as the court directs and that the proceeds therefrom be disposed of as provided in clauses (a), (b) and (c); and any such order dealing with the real property shall be conclusively deemed to be an order made under section 161 of The Real Property Act.
Where the balance of an estate is paid over to the Minister of Finance under subsection (1), if any claim thereto is subsequently established to the satisfaction of the court, the Minister of Finance, upon the authority of the court, shall pay the claim out of the Consolidated Fund.
The provisions of this Act with respect to the grant of probate or administration, inventories and bonds of administration do not apply in cases coming within subsection (1).
Subject to section 50, where probate or letters of administration, or other legal document purporting to be of the same nature, granted by a court of competent jurisdiction, is produced to and a copy thereof deposited with the registrar or a deputy registrar, the requirements of the rules complied with, and the prescribed fees paid as on a grant of probate or administration, the probate, letters of administration or other document, shall, under the direction of a judge, be sealed with the seal of the court, and shall thereupon be of the like force and effect in the province as if it had been granted by the court on the date of the granting thereof by the foreign court and is, in the province, subject to orders of the court, as if the probate or letters of administration had been granted by the court.
Subject to subsection (3), for the purposes of this section a duplicate of the letters probate or letters of administration or other document of the same nature, sealed with the seal of the court granting it, or a copy thereof certified by or under the authority of the court granting it, or an exemplification thereof, is as effective as the original.
A certified copy of any testamentary document to which reference is made in the foreign grant shall also be produced, together with a translation thereof, into the English language or the French language if the original testamentary document or copy thereof is written in another language.
Letters of verification issued in the Province of Quebec shall be deemed to be a probate within the meaning of this section.
Letters of administration shall not be sealed under section 48 until a certificate has been filed under the hand of the registrar or other proper officer of the court that issued the letters certifying that security has been given in that court in a sum sufficient to cover the assets within the jurisdiction of that court as well as the assets within Manitoba or, in the absence of the certificate, until like security is given to the judge covering the assets within Manitoba as would be required in the case of granting original letters of administration in the estate.
Section 48 does not apply to a state, country or territory other than
(a) a province or territory of Canada;
(b) any of the countries hereinafter named, or any province, state, district or territory thereof, namely:
(iii) Republic of Ireland,
(iv) New Zealand,
(vi) The United Kingdom, including the Isle of Mann, the Channel Islands and other adjacent islands,
(vii) The United States, including the District of Columbia, unless the Lieutenant Governor in Council has declared that that state, country, province, or territory has made adequate provision for the recognition therein of probates and letters of administration granted by the court.
After a grant of administration of the estate of a person, no person shall sue or prosecute any suit as executor of the deceased concerning the estate comprised in or affected by the grant, or otherwise act as the executor thereof, until the administration has been revoked.
Where a grant of probate or administration is revoked while legal proceedings are pending by or against the executor or administrator named therein, the court in which the proceedings are pending may order that a notation be made upon the record of the revocation, and the proceedings shall be continued in the name of the new executor or administrator in like manner as if they had originally been commenced by or against the new executor or administrator but subject to such conditions and variations, if any, as the court directs.
A certified copy under the seal of the court of the whole or any part of a will, or of the grant of any letters probate, letters of administration, or letters of guardianship, may be obtained from the registrar or a deputy registrar, on the payment of the prescribed fees, and is evidence of its contents in any court or in any proceedings.
The certificate of the registrar or a deputy registrar of search of documents filed or records kept by him pursuant to this Act or the rules certifying to the existence or non-existence of a document in his office, or to the contents thereof, or to any proceeding had in respect of an estate or matter, may be obtained on payment of the prescribed fees and is evidence of its contents in any court or in any proceeding.
Where administration of the estate of a deceased person is required in any proceeding, the court may appoint the Public Trustee as the administrator of the estate in any case in which the court thinks just, with or without notice to persons interested in the estate, and, when appointed, the Public Trustee shall forthwith enter upon the administration of the estate.
Where, after payment or provision for payment of all claims against an estate, there remains in the hands of the Minister of Finance money belonging to the estate that cannot be immediately paid out to persons entitled thereto, the money or a portion thereof may, at the request of the Public Trustee, be invested by the Minister of Finance as trustee for the benefit of the estate.
The Lieutenant Governor in Council may make regulations prescribing a tariff of fees and expenses to be paid and allowed to the Public Trustee.