The Will Was Changed And Left Me Out! What To Do With Probate and Multiple Wills

(Re) Dow Estate, 2015 BCSC 292

What if there are multiple wills and I was named in one but not another?  How the court handles a pending challenge to a will and probate

The deceased, Dalton George Dow, had made 4 wills in the last couple of years of his life – one in March 2012, January 2013, February 2013, and lastly April 2014.  He died October 2014. 

Joanne Golos applied for an order to vary the class of persons to whom documents are to be delivered under Rule 25-2(1) to include her.  Ms. Golos had been named as a beneficiary in the first and third will, but not the second and final will.  She was a friend of the deceased’s wife who had died in 2011 and questioned the capacity of the testator at the time of making his final will as she felt he may have been under undue influence in cutting her out of his final will.  Under the previous will, she stood to inherit ~$255,000 from the estate that was worth ~$2.6 Million which consisted mostly of cash. 

If the estate went to probate Ms. Golos would likely be prejudiced since the estate was mainly cash and the assets would be readily distributed before she may be able to advance her claim.  

The executor and beneficiary of the third and final wills opposed such application as he felt her claim on its merits was weak and that she should not be able to tie up the estate for up to a year while there was another remedy - to file a Notice of Civil Claim naming the estate as a defendant. 

HELD: 

In highlighting that the object of the Rules is to secure the just, speedy, and inexpensive determination of every proceeding on its merits, the court found that the applicant had met the threshold required by Rule 25-2(14).  They found that the risk to her of not being included in the class of persons entitled to receive information about the estate and to file a notice of dispute outweighed any prejudice to the estate, namely, that the estate will be tied up for up to a year, if not longer. 

S. 103 of the new Wills, Estates and Succession Act provides for the court-supervised administration of an estate pending legal proceedings concerning the validity of a will.  If those procedures are invoked, then the administration of the estate can move forward pending the applicant’s investigation of her concerns about mental capacity and undue influence. 

The court provided an order that expanded the classes of persons to whom documents referred to in Rule 25-2(1) are to be delivered so that the applicant, Ms. Golos, will be included. 

IV.         DISCUSSION

[10]        Counsel agreed that object of the Rules to secure the just, speedy and inexpensive determination of every proceeding on its merits applies to the rules governing estates. The question is how to apply those principles to this application.

[11]        The operation of Rule 25-2(14)(a) is to avoid any prejudice that would otherwise result to the intended applicant. The applicant here says that because the estate is liquid, if she is not able to file a notice of dispute and an estate grant is issued to Mr. Cosar, the estate could be distributed quickly and before she had a chance to file a notice of civil claim naming the executor and beneficiaries as defendants and pursue interlocutory remedies in that litigation. The prejudice to the applicant is the potential defeat of her claim before the merits can be assessed. The applicant says that if she is able to file a notice of dispute and receive estate documents, she may, in the course of her investigations, decide that an action to set aside the final will is not likely to be successful.

[12]        Mr. Cosar emphasizes what he says is the weakness of the applicant’s challenge of the final will. It is not appropriate at this stage, however, to weigh the merits of the applicant’s claim.

[13]        The concern that the estate will be tied up for up to a year, if not longer, if the application is granted is a fair one. Mr. Cosar has a legitimate concern that the distribution of a $2,632,000 estate should not be held up because of a claim worth at most $255,000. I asked counsel for further submissions as to whether the final will could be proved in solemn form on a summary application such that the court could grant probate to Mr. Cosar with an amount held back from distribution pending resolution of the applicant’s claim. Counsel were not able to provide any guidance on that point.

[14]        A person who is interested in an estate including an applicant for the estate grant (in this case, Mr. Cosar) could apply to set aside the notice of dispute pursuant to Rule 25-10(10). The court may remove the notice of dispute if the court determines that the filing is not in the best interests of the estate (Rule 25-10(11)). Whether the court might consider setting the notice of dispute aside on terms which protect Ms. Golos’s interests and at the same time allowing for an interim distribution remains to be seen. Also, s. 103 of the Wills, Estates and Succession Act provides for the court-supervised administration of an estate pending legal proceedings concerning the validity of a will. If those procedures are invoked, then the administration of the estate can move forward pending the applicant’s investigation of her concerns about mental incapacity and undue influence.

[15]        The applicant has met the threshold required by Rule 25-2(14). There is a risk that if she is not included in the class of persons entitled to receive information about the estate and to file a notice of dispute, she will be prejudiced. The prejudice is the risk that Mr. Cosar will be granted probate and the estate will be distributed before the applicant’s claim can be assessed. That prejudice outweighs the possible delay in the distribution of the estate.

V.           CONCLUSION

[16]        I therefore order that the classes of persons to whom documents referred to in Rule 25-2(1) are to be delivered are varied to include the applicant. It is not necessary to make an order that the applicant be entitled to file a notice of dispute because that entitlement follows from the order I have made.