Applying For Grant of Probate
This is issued to one or more of the executors named in a will.
Notice of Application
This is form 56.04A and contains the following:
- Name of the deceased;
- The community were the deceased lived;
- Deceased occupation;
- Deceased date of death;
- Name of the Applicant;
- Address for service and phone number of Applicant (if self-represented);
- Address and phone number of lawyer (if represented by a lawyer).
Dated and signed by the applicant or their lawyer.
The Notice of Application will be invalid 6 months after it’s posted unless the Application for Probate is made within that time period, or if a caveat has been entered and is still in effect.
After the 5-day notice period, if there were no caveats filed and no previous grant of probate has been made, you can proceed with the Application.
Petition for Probate
This is form 56.05A. The Petition for Probate provides important information including information about the Applicant, deceased, beneficiaries, and the will. This Petition must be signed by the Applicant or the Applicant’s lawyer. It includes the following information:
- The name of the petitioner;
- The community the petitioner is living in;
- The province of the petitioner;
- The full name of the deceased as well as any other names the deceased was known by;
- The marital status of the deceased;
- Occupation of the deceased (or retired of deceased was retired);
- The date and place of death of the deceased;
- Statement that the deceased was at least 17 at time of execution of the will;
- That the deceased did not marry after execution of the will or that there was a
declaration that the will was made in contemplation of that marriage;
- That the witnesses of the will were not beneficiaries or spouses of beneficiaries in the will.
- The names, addresses and ages of every beneficiary named in the will.
- A statement that there was no previous grant of probate.
The affidavit is found in form 56. This affidavit verifies the fact the petitioner has personal knowledge of the facts in the petition. This must be sworn or affirmed and witnessed by a Lawyer, Notary, Justice of the Peace or a Commissioner of Oaths.
The inventory is found in form 56.10A. This is for property and assets located in Newfoundland and Labrador and will be used to set the amount of probate fees charged. It should:
- Be marked as an exhibit and initialled by the petitioner and person witnessing the petitioner’s signature.
Proof of Will
This is found in form 56.11A. It is required as proof that the will is valid. A witness who was present at the time the will was signed will have to complete the Proof of Will.
If there are any codicils to the will, a proof of codicil must be signed as well.
The Proof of Will must include:
- Name, place of residence, occupation of the witness to the will;
- Name of the second witness of the will;
- That the witnesses believed that the deceased was of sound mind when they executed the will.
If the deceased was blind or used their mark (instead of a signature), or did not fully understand the language in which the will was written:
- Use form 56.11A (Proof of Will (Marksman).
- The affidavit must state that the will was fully explained to the deceased and that they understood fully what they were signing.
If a Proof of Will can’t be obtained from the witnesses to the will:
- An affidavit must be provided by someone else who was present when the will was signed.
If a Proof of Will can’t be provided by a witness or by someone else who was present at the time of the execution of the will, the affidavit must:
- State no Proof of Will can be provided from a witness or person present at the time of execution;
- Provide evidence of the handwriting of the deceased and the signing witnesses, or:
- Provide other evidence that would support the presumption that the will is valid.
If the Will is a holograph will (an unwitnessed will, signed and written wholly in the handwriting of the deceased), the Proof of Will should be:
- An Affidavit following form 56.11B signed by someone who either
- was present at the time of the execution of the will, or
- Knew the handwriting of the deceased well enough to verify the handwriting in the will is the handwriting of the deceased.
- The affidavit must state that the writing in the will is, in the belief of the person making the affidavit, the writing of the deceased.
Note: A judge may require proof in another form to satisfy the Court that the will is written and signed in the hand of the deceased.
The original will must be included in the application. It should:
- Be marked as an exhibit to the Proof of Will and initialled by the petitioner and person witnessing the petitioner’s signature.
- The back of the will must be signed by the petitioner, witnesses to the petitioner’s signature, the person completing the proof of will and the witness to the proof of will.
Oath of Executor
The Oath of Executor contains an oath stating that the executor will administer the estate to the best of their ability and according to the wishes of the deceased. It is form 56.33B and includes the following:
- The deceased died with a will:
- The executor was named as executor in the will
- The executor will faithfully administer the estate by:
- Paying legitimate debts;
- Distributing legacies contained in the will;
- Distributing any residue of the estate according to the law.
- The executor will provide an accurate and full inventory of the estate;
- The executor will provide a fair and accurate accounting of the estate when required by law to do so;
- A statement as to the value of the deceased’s death at the time of their death.
Draft Order of Letters of Probate
Once all documents are reviewed by a judge and are in order, Letters of Probate will be granted confirming the will and giving authority to the executor. The application must include a draft order so that the judge can sign it if granted. This is form 56.33E and will:
- State that the last will and testament of the deceased was valid and registered with the Court;
- Confirm the applicant’s authority and duties as an executor, and;
- Have a copy of the will attached.