Dealing with a Foreign Will with Assets in British Columbia
When a loved one passes away, their will comes into effect to distribute their assets and carry out their final wishes. However, complications may arise if the loved one’s will was created in a foreign jurisdiction and they left behind assets in British Columbia.
The first option in this situation is to obtain what’s called a resealing of a foreign grant of probate. This process first involves going through the probate process in the foreign jurisdiction that the will was created. Subsequently, you can apply to the British Columbia Supreme Court (“BCSC”) to obtain legal recognition and validation for the grant of probate from the foreign jurisdiction. The foreign jurisdictions that are traditionally recognized by the BCSC include any country that is a member of the British Commonwealth, any state in the USA, or Hong Kong.
However, there may be situations where a loved one leaves a will from a foreign jurisdiction that does not have the equivalent process for obtaining a grant of probate as found in British Columbia. This effectively makes obtaining a resealing order not possible, because the BCSC cannot recognize and validate a grant of probate from another jurisdiction. In this situation, you could go through the second option of directly probating the foreign will in British Columbia.
Probating a foreign will in British Columbia allows an individual to apply directly to the BCSC, provided there is no need to apply for a grant of probate in another jurisdiction. The BCSC will also require affidavit evidence that there is no need to obtain a grant in the foreign jurisdiction.
If you decide to probate a foreign will, you should take into account the following considerations:
1. Validity of the Foreign Will
For the foreign will to even be considered valid in British Columbia, it must comply with the laws of the jurisdiction in which it was executed or with the laws of British Columbia. However, the BCSC still retains the ability to cure deficiencies in a foreign will to render the will valid.
2. Ancillary Probate
When a foreign will is considered valid in the jurisdiction where it was executed, but contains assets within British Columbia, ancillary probate might be required. An ancillary grant of probate can be made by the court when a foreign grant of probate or administration does not qualify for resealing. This process allows the BCSC to recognize the foreign will and grant authority to deal with assets located in the province.
3. Legal Representation
Navigating the probate process for a foreign will can be intricate, involving unique legal aspects. Seeking professional assistance from a lawyer experienced in estate and probate law is highly advisable.
4. Document Authentication
To probate a foreign will in British Columbia, you will likely need to provide authenticated copies of the will, as well as any additional documents required by the BCSC. The authentication process involves verifying the validity of the foreign will through notarization or apostille, depending on the country of origin.
5. Translations
If the foreign will is not in English, it must be translated into English by a qualified translator. Both the original and translated versions will be submitted to the BCSC as part of the probate application.
6. Estate Administration Tax
When probating a foreign will in British Columbia, you will need to pay estate administration tax (probate fees) based on the value of the assets located within the province. This tax is calculated at a specified rate and is an essential part of the probate process.
Probating a foreign will in British Columbia requires careful consideration of legal representation, authentication, translations, and estate administration tax. The probate application itself involves completing and submitting various documents, which can be complex and nuanced. However, with the right legal guidance, the probate process can be efficiently managed.
There is also a third less commonly used option to deal with a loved one’s assets in British Columbia if they left behind a foreign will. This option involves applying to the BCSC for an order under section 132 of the Wills, Estates and Succession Act (the “Act”). Under section 132 of the Act, the BCSC may appoint as administrator of an estate any person the court considers appropriate if, because of special circumstances, the court considers it appropriate to do so. This appointment of an administrator may be conditional or unconditional, and made for general, special, or limited purposes. This determination by the court largely depends on the context and the specific facts of the matter.
This option is especially important if a loved one may have left behind assets in British Columbia that are time-sensitive such as stock options that expire by a certain date, or investments that need to be capitalized on immediately so that profits can be realized. Under these circumstances, obtaining a resealing order or a grant of probate of the foreign will may not be practical or even possible. If you find yourself in this predicament, and a loved one has left behind assets in British Columbia, reach out to a member of our experienced Estate Litigation team to obtain the assets your loved one intended for you to receive.