Authors: Emily Clough, TEP, Michael Scott, TEP, Richard Weiland, TEP and Zachary Murphy-Rogers

Despite court closures and many lawyers working remotely from home, it is still possible to prepare and submit applications for probate, and to keep the administration of estates progressing. A few of the ways in which COVID-19 has or could impact estate administration activities are discussed below, along with the appropriate accommodation or workaround that enables the task to be completed during this time.

Suspension of Regular Court Operations

Effective March 19, 2020, the British Columbia Supreme Court has suspended all regular operations until further notice. All trials, conferences and chambers applications scheduled between March 19, 2020 and May 1, 2020 have been automatically adjourned. However, the Court will continue to hear essential and urgent matters upon request of an applicant, at the Court’s discretion. For more information, please review the Court’s notice.

Paper filings and Processing time

Despite the adjournment of hearings as mentioned above, the Probate Registry is still open for processing paper applications, but will only accept applications received by mail. The Probate Registry has limited the number of staff working while the novel coronavirus is at large, so processing time for probate applications may be delayed. As a result, and to avoid any further delays, it would be prudent for executors/administrators to ensure they are doing everything necessary to expedite the parts of the probate application process that are currently in their control.

Notice of Probate Applications

As an example of a step that can be taken now by an executor/administrator to limit delays in receiving probate during this unpredictable time, the executor/administrator can send out the relevant notices of probate. Notice must be delivered to certain classes of individuals as part of the probate application process. Notice is typically sent by regular mail, though it may be possible to give notice via email or other methods of communication as long as certain steps are taken. We can assist with properly serving beneficiaries and other interested parties with the required notice.

Remote Signing of Affidavits

As part of the probate application process, the person applying for the Grant of Probate must sign several Affidavits. Your application for probate does not need to wait until lawyers offices return to being open. We can now take Affidavits remotely, in certain circumstances.

The Court has temporarily relaxed the ordinary requirement that affidavits be taken in the presence of a lawyer or notary (known as a “commissioner”). To facilitate the execution of affidavits through the COVID-19 pandemic, affidavits may now be taken with the assistance of video technology. The requirements are as follows:

1. The affidavit must include a paragraph to state that the person making the affidavit (known as the “deponent”) was not physically present before the commissioner and video technology was used to commission the affidavit.
2. The deponent and the commissioner must be connected via video technology (Skype, Zoom, FaceTime, Facebook Messenger, or other).
3. The deponent and commissioner must each have an identical paper copy of the affidavit, including exhibits, in front of themselves.
4. The deponent must show on the video the front and back of his or her current government-issued photo identification. The commissioner must take screenshots of the deponent’s photo identification, and must be satisfied that he or she is communicating with the correct person.
5. The deponent and commissioner must compare each page of the affidavit in front of themselves to ensure that the documents are identical, and then initial each page.
6. The commissioner will then administer the oath and watch the deponent sign the affidavit on video camera.
7. Once signed, the deponent must scan and email the signed affidavit to the commissioner, then the commissioner must compare the deponent’s signed copy of the affidavit with the commissioner’s copy. Upon being satisfied that the two copies are identical, the commissioner may sign his or her copy then attach the two together.
8. The commissioner must sign a certificate stating that the commissioner was satisfied that the process of signing the affidavit through video technology was necessary as an in-person signing would have been unsafe for medical reasons.

The Court’s notice of accommodation for affidavits taken via video technology, with complete descriptions of the new requirements, can be found here.

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The estate administration lawyers at Clark Wilson are keeping up to date with all developments that may impact applications for probate, and can help you navigate the system in these rapidly-changing times.