Applications for Representation Grants (Probate or Administration)
A representation grant includes a grant of probate, any grant of administration or the resealing of a grant. Any person applying for a
representation
grant is required to send written notice to the Public Guardian and Trustee (PGT), if any person to whom notice must be given is a minor (to age 19). The list of persons to whom notice must be given includes, but is not limited to, the following:
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a person who is at least equally entitled to apply for a
representation
grant as executor;
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a person who is at least equally entitled to apply for a
representation
grant as administrator;
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a person who is a beneficiary under the will;
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an intestate successor;
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a spouse of the deceased; or
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a child of the deceased.
However, notice to the PGT is not required if all of the following apply to the estate involving a minor:
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the applicant is an executor (or alternate executor) named in the deceased’s will; and
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the minor is not a spouse or child of the deceased; and
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the will creates a trust for the interest of the minor in the estate; and
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the will appoints a trustee for that trust.
The PGT requires details of all debts of the deceased’s estate, as well as the intended distribution of the estate.
The applicant should ensure that:
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all necessary information has been provided, including all the documents that will be filed in court;
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all documents are properly executed;
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if there is a will, it is the most recent will;
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the applicant is the proper person to make the application;
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all consents or renunciations have been obtained if the application is made by someone other than the first person entitled to apply;
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if the applicant is not an executor named in a will, proper security arrangements have been considered;
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if any claims are anticipated to be made against the estate, the applicant will not be placed in a conflict of interest; and
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the PGT review fee has been submitted.
Once notice and copies of all the probate documents have been received, the PGT will review the documents on behalf of the minor, seek further information or clarification as required, and then provide comments for the court. The PGT comments will be delivered to the applicant and the applicant must file the PGT’s comments with the court. The
Wills, Estates and Succession Act provides that the court must not issue the
representation
grant before receiving the PGT’s comments.
The PGT charges a fee, set out in the
Public Guardian and Trustee Fees Regulation, for reviewing applications for representation grants. The fee is payable on receipt of the application for review.
The applicant must send the PGT a copy of the estate grant within 45 days of the grant being issued by the court. The PGT may follow up with the applicant to ensure the minor's share of the estate has been properly dealt with.
Information for the Applicant
To provide notice via email, please send the documentation to
gars@trustee.bc.ca or via facsimile to 604.775.2429. Notices provided via email or facsimile are not considered delivered until acknowledged by the PGT.
Notice may be provided by hand delivery or mail, to the PGT at 700 – 808 West Hastings Street, Vancouver, BC V6C 3L3.
Limitation Act Notices
Parents or guardians with parental responsibilities for a minor's legal and financial interests have a duty to pursue litigation on behalf of a minor where a minor may have a viable claim. When a claim has not been pursued, the
Limitation Act sets out the rules for determining how long a person has, after turning age 19, to pursue a claim. However, a defendant may serve a notice to proceed on the minor's parents or guardians with usual care and control of the minor, and on the PGT, pursuant to the provisions of the Limitation Act. Service of a notice to proceed starts the running of time and the minor's litigation guardian, or the minor when legally able to do so, will have to commence a legal action to pursue the claim within the applicable limitation period if the claim does not settle before the limitation period expires.
When the PGT is served with a notice to proceed, a letter is sent to the parents or guardians explaining the effect of the notice and the need to act. The PGT requests confirmation that a lawyer has been retained by the parents or guardian on the minor's behalf and that a notice of civil claim has been filed to protect the minor's claim.
If the parents or guardians fail to protect the minor's claim, the PGT may commence legal action to preserve the interests of the minor where the circumstances warrant.
A spouse or child of a deceased person may apply to the court to vary the deceased's will if the will does not make adequate provision for the proper maintenance and support of the will maker’s spouse or children. A spouse includes a person married to the will maker or someone who lived with another person in a marriage like relationship, and lived in that relationship for a period of at least 2 years. A spouse must not have ceased being a spouse prior to the death of the deceased. A child includes a natural or adopted child.
A
wills variation
action must be commenced within 180 days from the date of the representation grant. A copy of the notice of civil claim must be served on the PGT if the will maker has minor children.
a) Minor Spouse or Child as a Claimant In
Wills Variation Actions
Normally a wills variation action will not be brought on behalf of a minor child when the will maker leaves his/her estate to the surviving natural parent because it is expected that the surviving parent will, in the normal course, continue to maintain the minor child.
However, situations may arise in which a wills variation action may be brought on behalf of a minor child to protect his/her interests. These situations include,
but are not limited to, the following: a minor child who has been excluded from the will of a deceased parent when the parents are divorced or when a will maker leaves his/her estate to the minor child's stepparent.
The PGT will receive notice from an applicant for a grant of probate or letters of administration with or without will annexed on behalf of a minor child of the deceased. If it appears that a minor has a viable claim, the PGT will seek to ensure that the minor's parent, guardian or someone else will take steps to protect the minor's claim and act as litigation guardian for the minor and instruct counsel. If it appears that steps are not being taken to protect a minor's legal interests, the PGT may initiate a legal claim and instruct counsel on behalf of the minor and seek payment of counsel's fees from the estate or the minor’s share of the estate.
b) Minors who are Defendants in Wills Variation Actions
Sometimes a spouse or adult child seeks a share or larger share of the deceased's estate. In such cases, a minor beneficiary's parent or guardian may need to arrange for a lawyer to represent the minor child of the deceased, whose inheritance may be diminished as the result of a successful claim. If the minor's parent or guardian is unable to act as litigation guardian due to a conflict, the PGT may agree to act as litigation guardian if no one else is available. The PGT will seek payment of its legal fees from the estate or the minor's share of the estate.
In some cases, a wills variation action may propose to reduce or eliminate the share of a minor beneficiary who is not the will maker's child. The minor's litigation guardian would normally instruct counsel on the minor's behalf unless they find themselves in a conflict of interest. If there is no one willing and able to act as litigation guardian for the minor, the PGT may consent to act. In this case, the PGT would retain counsel and seek payment of counsel's fees from the estate or the minor's share of the estate.
If the parties seeking to vary the will agree to leave any gifts to minors intact, the PGT may agree to act as litigation guardian for the minors and not retain outside counsel. This arrangement spares the estate the expense of another lawyer's fees. If a concern arises that the interests of the minor require more than monitoring, the PGT may retain counsel for the minor and seek payment of counsel's fees from the estate or the minor’s share of the estate.
c) Public Guardian and Trustee Comments to the Court
Only the court has authority to vary a will under the Wills, Estates and Succession Act. However, in some cases, where the only beneficiaries are capable adults, they may agree among themselves to distribute an estate in a way other than that which the will maker has directed in the will. No one can consent to such an agreement on behalf of a minor. When minors are involved, an application to vary the will must be made to the court and the PGT must be served with a copy of the notice of civil claim.
The PGT will generally provide written comments to the court with respect to the merits of the proposed settlement. The PGT is entitled to appear in court if necessary.
Trust and Settlement Variations
Under the common law, a trust may be varied with the consent of all the beneficiaries of the trust, vested or contingent, provided they are of age and are mentally competent. However, when the beneficiaries of the trust include minors, unborn or unascertained persons, or persons lacking mental capacity, an application to approve a variation of the trust on their behalf must be brought pursuant to the
Trust and Settlement Variation Act.
The court will not approve an arrangement to vary a trust on behalf of a minor, unborn, unascertained, or otherwise incapable beneficiary unless the arrangement appears to be for benefit of those beneficiaries.
In these circumstance, anyone applying to vary a trust pursuant to the Trust and Settlement Variation Act must serve the PGT with notice in writing of the application and with a copy of the material filed in support of the application not less than 10 days before the date of the application. Applications under the Trust and Settlement Variation Act are complex and time consuming and applicants should provide the PGT with as much notice as possible so that any concerns may be addressed at the outset.
The PGT will review the application and material and consider how the proposed arrangement will affect the interests of the minor, unborn, unascertained, and otherwise incapable beneficiaries and ensure that a tangible benefit is conferred on those beneficiaries by the proposed arrangement.
The PGT will generally provide written comments on the proposed arrangement to legal counsel acting for the applicant which counsel provides to the court. Counsel for the PGT may appear at the hearing and seek appointment under the Supreme Court Civil Rules to represent the minors, unborn, unascertained or incapable beneficiaries. The PGT is entitled to any costs that the court may order.
In narrow circumstances, and depending on the terms of the trust instrument, a trust may be accelerated following the disclaimer by a life tenant of his or her interest in the trust, without the Trust and Settlement Variation Act being invoked. In these circumstances, an application would be made to the court on notice to the PGT. The PGT would provide written comments to be provided to the court and would appear at the hearing if necessary and requests costs.
Contracts Entered into by Minors
A contract entered into by a minor is generally unenforceable against the minor, but is enforceable by the minor against an adult party to the contract.
A party wishing to contract with a minor may apply to the court under the Infants Act for an order granting the minor contractual capacity. Notice of the application must be served on the PGT not less than 10 days before the date of the hearing of the application.
The PGT will review the contract and make written recommendations to the court. In some cases the PGT will attend at the hearing of the application. In reviewing the contract, the PGT considers the following: the circumstances surrounding the making of the contract; the nature, subject matter and terms of the contract; the requirements of the minor, having regard to his/her particular circumstances; the age and means of the minor; and the wishes of the minor's parent or guardian.
Under the Employment Standards Regulations a portion of the earnings of minors under the age of 15 working in the recorded and live entertainment industry may be paid to the PGT to be held in trust. The entertainment industry (for the purposes of the protection under these regulations) is defined as the film, radio, video or television industry or the television and radio commercial industry. For more information see the Employment Standards Branch Fact Sheet
on Trust Funds for Children Working in the Recorded and Live Entertainment Industries.
Authorizing the Sale of a Minor's Real Property
A parent or guardian wishing to sell real property owned by a minor or in which a minor has an interest must apply to the court under section 2 of the Infants Act and serve a copy of the application on the PGT.
The PGT will review the application to determine whether the sale is in the best interest of the minor, considering the appraised value and the proposed selling price of the property, and provide written recommendations to the court.
In addition to granting the order authorizing the sale, the court will usually direct that the guardian has the authority to act on the minor's behalf in executing the necessary property transfer documents. The court will also make an order regarding receipt and disbursement of the proceeds of sale.
Where a minor's property is held in trust, and there is no power of sale contained in the trust instrument, a trustee who wishes to sell the property must seek leave of the court under the Trustee Act. The court will usually require comments from the PGT. Usual practice is to serve the PGT with a copy of the application. The PGT will review the application and provide written recommendations to the court.
Settlement Reviews under the
Infants Act
When a minor is injured as a result of another person's negligence, the person, or the person's insurer, may offer money to settle any legal claims the minor may have. When that happens, the PGT is required to review the proposed settlement, to ensure that it fairly compensates the minor. For settlements of $50,000 or under, the PGT can approve or reject the settlement on the minor’s behalf. If the settlement is over $50,000, the PGT makes a recommendation to court as to whether the settlement is adequate. The court then makes the final decision as to whether the settlement will be approved.
For more information on submitting settlement proposals to the PGT for review, including statutory authority, procedures and forms, see
Settlement Submissions Under the
Infants Act: Public Guardian and Trustee's Requirements.
Minor's Property
Pursuant to the laws in BC that protect the financial and legal interests of minors, the PGT is required to act as trustee of certain funds or property payable to minors. The PGT holds this property in trust until the minor turns 19 years of age. However, under the
Family Law Act and with the consent of the defendant, funds $10,000 and under may be paid to a guardian to be held in trust for the minor. The person with the duty to deliver property has no obligation to deliver it to the guardian and they may elect to deliver the property to the PGT.
A person may be appointed as trustee of a minor’s property by a
statute, will, a trust document or court order. Trustees appointed in this manner are considered to be private trustees. If a parent, guardian or other person applies to court to be appointed trustee of a minor's property, the PGT must review the application and provide comments to the court. Before deciding to appoint a private trustee the court will consider a number of factors outlined in the
Family Law Act. See Applications to
Appoint a Trustee of a Trust for a Child Under the
Family Law Act: Public Guardian and Trustee Guidelines for further information.
Private trustees are expected to administer the minor's property with the utmost care and integrity and in accordance with the terms of the trust. The PGT recommends that a private trustee seek legal advice before making decisions on behalf of the minor or the trust. For a general guide, see
Children's Trusts: Management of Trusts Where the Beneficiary is under 19.
The PGT generally does not monitor private trustees, but if the PGT has reason to believe that the minor's interest in the trust is at risk, the PGT may investigate the concern pursuant to the
Public Guardian and Trustee Act and require the private trustee to provide an accounting and other relevant records.
