Probating a Will vs. Proving a Will in Solemn Form

Probating a will and proving a will in solemn form are two different legal concepts which can be easily confused. Probating a will, also known as proving a will in common form, is how you prove that your will is real and properly prepared. On the other hand, proving a will in solemn form is how you affirm the validity of a will in front of the courts.

Why Probate Your Will?

In BC, it’s necessary to probate your will if your entire estate is valued higher than $25,000 (excluding assets held in joint tenancy or with designated beneficiaries), or if you own any land. After applying for probate, a grant of probate is given to the executor who can then prove to banks that they have authority over the estate. The purpose of probating a will is to guarantee that large assets are not improperly handled after the owner passes away.

The Process of Probating a Will

To obtain a grant of probate, an application to the court is made by filing a requisition and evidence in support of the applications including:

• A certificate of wills notice search,
• An affidavit of the executor attaching the original will and codicils to the will along with any memoranda that are referred to in the will,
• A detailed statement of the deceased’s assets and liabilities,
• The plan for distribution contained in the will,
• An affidavit advising the court of the persons who inherit under the will, those would have inherited had there not been a will and those entitled to claim against the will under the Wills, Estates and Succession Act, and;
• An affidavit confirming that those who inherit, would have inherited had there not been a will and those entitled to claim against the will have been served with the notice of probate application.

In some circumstances, other affidavits may also be needed – and it may also be necessary to inform the British Columbia Public Guardian and Trustee of the application for probate. In addition to a grant of probate, a person may also need to apply for letters of administration from the court. A full list of the probate forms is available at the Province of British Columbia’s website.

If you’re going to probate your will, you should expect to pay approximately 1.4% of the total estate’s value, plus a $200 court filing fee. If you’ve identified that you need to go through probate even though your assets are valued below $25,000, the probate fees will be waved.

Why Prove a Will in Solemn Form?

A proof in solemn form is conducted when the courts need conclusive evidence as to whether a will is valid, and is the final will of the testator. A proof in solemn form is typically only necessary when there is controversy over the validity of a will and someone is taking legal action. In this case, the court can give the executor the burden of proving the will in solemn form. This will ultimately end the dispute and settle if the will is the valid, last will of the testator. The most common instances where proof in solemn form is required are when:

1. A beneficiary is taking action on the validity of a will. The executor must prove in solemn form that the will is valid; or,
2. Someone takes action to revoke a grant of probate after a proof in common form. The executor must prove in solemn form that the grant of probate and will are valid.

The Process of Proving a Will in Solemn Form

Proof in solemn form is an extensive process as all those involved in the will-making process can be necessary to provide evidence as witnesses. All interested parties are notified of the process. A case in Vancouver from 2009 is a clear example of when and why the courts would require a proof in solemn form.

The case of Romans Estate v. Tassone (2009) demonstrates an instance where an executor is ordered to prove a will in solemn form. Romans gave his house to Tassone, but later signed in his will that a third party, Cardinal, be given the estate home. After Romans passed away, Cardinal sued Tassone, claiming that Romans did not have the capacity to give the house to him and that he used undue influence to receive the house. The judge said that Cardinal must prove the will in solemn form in order to have grounds to sue Tassone; if the will was not conclusively valid, there was no reason to begin the trial. If this will was successfully proven in solemn form, then Cardinal would be awarded the estate because this would mean the will was a valid, final will.

In Romans’ estate trial, the will’s validity was in question, a beneficiary took action, and as a result, a proof in solemn form was required.

If you need legal advice on how to probate a will or how to prepare a proof in solemn form, contact an experienced estate lawyer who will ensure that estates are distributed as intended by the will-writer.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.